[Cite as State v. Cochern, 2018-Ohio-265.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                     No. 104960



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                 CHADD M. COCHERN
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-12-569110-A

        BEFORE: Kilbane, P.J., Stewart, J., and Blackmon, J.

        RELEASED AND JOURNALIZED: January 25, 2018
ATTORNEYS FOR APPELLANT

Brandon J. Henderson
Justin Weatherly
3238 Lorain Avenue
Cleveland, Ohio 44113-3702


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Carl Sullivan
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:

       {¶1} Defendant-appellant, Chadd Cochern (“Cochern”), appeals his jury

conviction for rape, disseminating matter harmful to juveniles, and kidnapping. For the

reasons set forth below, we affirm.

       {¶2} In April 2013, Cochern was charged in a 12-count indictment arising out of

sexual abuse allegations by his former girlfriend’s two minor daughters, J.T. and A.T.

The indictment charged Cochern with five counts of rape, two counts of gross sexual

imposition (“GSI”), four counts of kidnapping, and one count of disseminating matter

harmful to juveniles. Each count of rape and GSI carried sexually violent predator

specifications. Each count of kidnapping carried sexual motivation and sexually violent

predator specifications.

       {¶3} Cochern was taken into custody in May 2013. Cochern retained counsel to

represent him. At his arraignment, Cochern pled not guilty to the indictment. After the

arraignment, Cochern posted a $100,000 surety bond and was released.

       {¶4} Thereafter, numerous pretrials were held and continued at Cochern’s

request. Two trial dates were set and also continued at Cochern’s request. In January

2014, Cochern requested a third trial continuance. On January 21, 2014, Cochern and

the state stipulated to a calculation of Cochern’s speedy trial time, agreeing that 22 days

had elapsed. On that date, the trial court granted Cochern’s request for a continuance

and set a new trial date of March 18, 2014. On March 18, the trial date was continued at

the state’s request to June 23, 2014, “the first available date for court and counsel,”
because the assistant county prosecutor was engaged in trial in another courtroom. On

May 12, 2014, Cochern executed a speedy trial waiver from May 7, 2014 through July 31,

2014.

        {¶5} On June 23, 2014, Cochern again moved to continue the trial to August 25,

2014, because his counsel was engaged in trial in federal court. On July 28, Cochern

executed a second speedy trial waiver from July 14 through October 31, 2014.

        {¶6} The trial court granted Cochern’s request for a continuance and set a final

pretrial for August 5, 2014, at which Cochern failed to appear. The trial court issued a

capias. On August 15, 2014, Cochern appeared in court, and the trial court recalled the

capias. On this date, Cochern moved for a continuance of the August 25 trial date,

explaining that he wished to retain new counsel. The trial court granted Cochern’s

request and gave him until September 16, 2014 to retain new counsel.

        {¶7} On September 16, 2014, Cochern’s bond was revoked, and he was taken

into custody for his failure to comply with the conditions of his bond. Cochern was

arrested in Lorain County, Ohio in early September 2014. The trial court appointed an

assistant public defender to represent Cochern because he had not yet retained new

counsel.

        {¶8} On October 7, 2014, the trial court set a November 3, 2014 trial date and

reinstated Cochern’s bond. On October 14, Cochern failed to appear for the scheduled

final pretrial, and the trial court again revoked his bond.
       {¶9} On October 22, 2014, Cochern was taken into custody. On October 24,

Cochern’s newly retained counsel filed a motion to reinstate his bond. The trial court

granted this motion, reinstated Cochern’s bond, ordered Cochern released, and set a new

trial date of December 9, 2014.        In November, Cochern’s new counsel requested

additional time to prepare for trial and a continuance of the December trial date. The

trial court granted this continuance and set a new trial date of February 11, 2015.

       {¶10} In December 2014, the state moved to revoke Cochern’s bond because he

had been indicted and arrested for robbery in Portage County, Ohio. The trial court

granted the state’s motion and revoked Cochern’s bond on December 16, 2014. In

February 2016, while Cochern was still capias, Cochern’s defense counsel filed motions

for the following: a bill of particulars, case in chief, discovery, and exculpatory material.



       {¶11} Cochern was capias until March 18, 2016. On March 25, Cochern filed a

motion to reinstate his bond. The trial court never ruled on this motion and Cochern

remained incarcerated. In April 2016, a trial was set for July 2016, but was ultimately

rescheduled to August 2016 because the trial court was engaged in trial in another matter.

       {¶12} On August 29, 2016, the matter finally proceeded to a jury trial. Prior to

trial, Cochern had moved for dismissal of the indictment arguing that he had been denied

the right to a speedy trial. The trial court denied this motion. Prior to jury selection,

Cochern executed a jury waiver on the sexually violent predator specifications.
        {¶13} At trial, J.T. and A.T.’s mother (“Mother”) testified that her relationship

with Cochern began in 2009, when J.T. was around four years old, and continued “off and

on” for two and a-half years. Mother testified that Cochern was the only white man she

had ever dated and that he was the only man named “Chadd” she has dated. She further

testified that Cochern had been a frequent presence in her daughters’ lives during her

relationship with him and that he had resided with her and her daughters for a period of

time.

        {¶14} Mother explained that she lived with the girls’ father, her ex-husband, in a

single family home on West 23rd Street from 2006 until he moved out when they

separated. In 2008, she met Cochern. Cochern was her next-door neighbor on West

23rd Street  he lived below her mother in a double. She testified she began dating

Cochern in the summer of 2009. She explained that in the winter of 2010, she and her

daughters moved into an apartment in the downstairs unit of a double home on West 44th

Street. She testified that Cochern lived with them in this unit on West 44th Street.

        {¶15} In the summer of 2011, Mother and her daughters moved to an apartment in

the upstairs unit of a double near West 40th Street and Clark Avenue. She testified that

although she and Cochern were not officially dating at that point, he did visit this home,

and their relationship ultimately ended while she lived on West 40th street. In November

2011, the family moved to a downstairs unit on Bush Avenue. She explained that at this

time, she was no longer speaking to Cochern.
       {¶16} Eleven-year-old J.T. testified as to four separate instances of sexual abuse

by Cochern that occurred when she was in kindergarten and first grade, from the time she

was five until the age of six.

       {¶17} J.T. described three instances of sexual abuse that took place in the

apartment she shared with her mother and sisters in the upstairs unit of a double home.

J.T. testified that Cochern made her “suck his private part” and that on one occasion, he

extorted her to do so in return for fixing the television in her room. J.T. also testified

that she remembered a separate occasion when she hid from Cochern under the counter in

the kitchen. She explained that Cochern found her there and forced her to perform oral

sex on him. She testified that during this assault, her mother was drinking on the porch

outside. J.T. testified that Cochern threatened to “whup” her with a belt if she told

anyone about either incident. J.T. also described a third incident that took place in this

apartment where Cochern forced her to watch him masturbate and ejaculate into the

bathroom sink. He then told her to “suck his private part.”

       {¶18}     J.T. next described one instance of sexual assault that occurred while

Cochern lived with her family. She explained that Cochern and her family resided in an

apartment in the downstairs unit of a double home. J.T. testified that Cochern tied a sock

around her eyes to blindfold her and “made [her] suck his private part.” She further

testified that she told Cochern to “stop putting [the sock] on [her] face.”
       {¶19} J.T.’s younger sister, A.T., also testified. A.T. explained that when she was

still too young to go to school, Cochern “made [her] touch his private part” with her hand

while in her mother’s bedroom.

       {¶20} The state also called the investigating officer, Detective Jack Lent

(“Detective Lent”), J.T. and A.T.’s father, their father’s girlfriend, and two of the girls’

older cousins to whom they first disclosed the sexual abuse.

       {¶21} After the close of the state’s evidence, the state moved to dismiss Counts 1,

3, 4, and 5 and Cochern moved under Crim.R. 29 for acquittal on Counts 8, 10, and 12.

The trial court granted Cochern’s motion as to Counts 8 and 12 — kidnapping charges

related to the bathroom incident with J.T. and the single incident related to A.T.

       {¶22} The defense called Cochern’s former landlord of the apartment he lived in

during most of 2011, Cochern’s fiance, and a private investigator.

       {¶23} The jury found Cochern guilty of three counts of rape, one count of

disseminating matters harmful to juveniles, and one count of kidnapping with a sexual

motivation specification, which were all the remaining counts that related to conduct

alleged by J.T. The jury did not find Cochern guilty of the GSI count related to the

incident alleged by A.T. The trial court did not find Cochern guilty of any of the relevant

sexually violent predator or sexual motivation specifications that were tried to the bench.

       {¶24} In September 2016, the trial court sentenced Cochern to a term of life in

prison with parole eligibility after 25 years. The trial court also determined Cochern to be

a Tier III sex offender.
      {¶25} It is from this order that Cochern now appeals, raising the following three

assignments of error for our review:

                                Assignment of Error One

      The evidence was insufficient as a matter of law to support a finding
      beyond a reasonable doubt that [Cochern] was guilty of rape and
      kidnapping.

                                Assignment of Error Two

      [Cochern’s] convictions for rape, disseminating matter harmful to juveniles,
      and kidnapping were against the manifest weight of the evidence.


                               Assignment of Error Three

      [Cochern] was unlawfully deprived of his right to a speedy trial.

                               Sufficiency of the Evidence

      {¶26} In the first assignment of error, Cochern argues the state did not put forth

sufficient evidence to support the jury’s finding that he was guilty of Counts 9 and 10 —

the rape and kidnapping described by J.T. as occurring in a downstairs unit apartment

where Cochern blindfolded her with a sock and forced her to perform fellatio on him.

       {¶27} A claim of insufficient evidence raises the issue of “‘whether the evidence is

legally sufficient to support the verdict as a matter of law.’” State v. Thompkins, 78 Ohio

St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541, quoting Black’s Law Dictionary 1433

(6th Ed.1990). The Ohio Supreme Court has held:

       An appellate court’s function when reviewing the sufficiency of the

       evidence to support a criminal conviction is to examine the evidence
      admitted at trial to determine whether such evidence, if believed, would

      convince the average mind of the defendant’s guilt beyond a reasonable

      doubt. The relevant inquiry is whether, after viewing the evidence in a

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

      found the essential elements of the crime proven beyond a reasonable

      doubt.

State v. Jenks, 61 Ohio St.3d 259, 574 N.E. 492 (1991), paragraph two of the syllabus. A

reviewing court is not to assess “whether the state’s evidence is to be believed, but

whether, if believed, the evidence against a defendant would support a conviction.”

Thompkins at 390. “In essence, sufficiency is a test of adequacy.” Id. at 386.

      {¶28} As discussed above, Cochern was convicted of Counts 9 and 10 that related

to the blindfolding incident described by J.T. Count 9 charged Cochern with rape in

violation of R.C. 2907.02(A)(1)(b), which provides, in relevant part:

      No person shall engage in sexual conduct with another who is not the
      spouse of the offender * * * when * * * [t]he other person is less than
      thirteen years of age, whether or not the offender knows the age of the other
      person.

      {¶29} Count 10 charged Cochern with kidnapping in violation of R.C.

2905.01(A)(4), which provides, in relevant part:

      No person, by force, threat, or deception, or, in the case of a victim under

      the age of thirteen or mentally incompetent, by any means, shall remove

      another from the place where the other person is found or restrain the
      liberty of the other person, * * * [t]o engage in sexual activity, as defined in

      [R.C. 2907.01], with the victim against the victim’s will[.]

      {¶30} Cochern admits that “the elements of [rape under] R.C. 2907.02(A)(1)(b)

and [kidnapping under] R.C. 2905.01(A)(4) are present in [J.T.’s] testimony” as to

Counts 9 and 10. He argues, however, that the state’s timeline “incontrovertibly” shows

that he could not have committed these offenses. Cochern points specifically to the

conflicting testimony of J.T. and Mother regarding where the family lived and the status

of Cochern and Mother’s relationship at the time J.T. alleged this incident to have

occurred. This argument is unpersuasive.

      {¶31} As we noted above, the test for sufficiency of the evidence is one of

adequacy. Thompkins at 390. We are not to assess “whether the state’s evidence is to

be believed, but whether, if believed, the evidence against a defendant would support a

conviction.” Cochern concedes that the evidence put forth by the state as to Counts 9

and 10 was sufficient to meet each required element of rape and kidnapping, but

essentially contends that conflicting evidence precludes his conviction on those counts.

We note that Cochern also relies on the contradictory testimony of J.T. and Mother in

support of his manifest weight challenge in the second assignment of error. Accordingly,

we will address this argument with his second assignment of error.

      {¶32} At trial, J.T. testified that Cochern engaged in sexual conduct with her  she

testified that Cochern forced her to perform fellatio. The state established that Cochern

restrained J.T.’s liberty. J.T. testified that Cochern used a sock to blindfold her and
ignored her pleas to “stop putting [the sock] on [her] face.” The state established that

J.T. was under 13 at the time of this rape and kidnapping — she was 11 at the time of trial

and the state used her ages in kindergarten and first grades as a time frame to elicit her

testimony that she was five and six when Cochern sexually abused her.

       {¶33} In viewing the evidence presented in a light most favorable to the state, we

find that the jury rationally found the essential elements of rape and kidnapping proven

beyond a reasonable doubt. Accordingly, the first assignment of error is overruled.

                                     Manifest Weight

       {¶34} In the second assignment of error, Cochern argues that his convictions are

against the manifest weight of the evidence in light of inconsistencies in J.T.’s testimony

as well as conflicting testimony between J.T. and her mother related to the time line of the

sexual abuse.    He also argues that police investigation of J.T.’s allegations was

“minimal.”

       {¶35} Unlike a review for sufficiency of the evidence, a challenge to the manifest

weight of the evidence attacks the credibility of the evidence presented.          State v.

Calhoun, 8th Dist. Cuyahoga No. 105442, 2017-Ohio-8488, ¶ 41, citing Thompkins, 78

Ohio St.3d at 387, 1997-Ohio-52, 678 N.E.2d 541. Because the standard of review for a

manifest weight challenge is broader than a review for sufficiency of the evidence, a

reviewing court may determine that a judgment is sustained by sufficient evidence but

nevertheless conclude that the judgment is against the manifest weight of the evidence.

Id., citing State v. Robinson, 162 Ohio St. 486, 487, 124 N.E.2d 148 (1955).
      {¶36} In determining whether a conviction is against the manifest weight of the

evidence, we function as a “thirteenth juror.” Id. We 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 jury clearly lost its way and

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

new trial ordered. Id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d

717 (1983).   We note that our “discretionary power to grant a new trial should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction.” Id.

      {¶37} Cochern points to inconsistencies between J.T.’s accounts of the sexual

abuse initially given to responding officers, in the interview she gave to Cleveland Police

Detective Jack Lent, and in her trial testimony. Cochern’s argument focuses on J.T.’s

use of present-tense language when describing Cochern’s actions in the interview she

gave to Detective Lent.     Cochern argues that J.T.’s use of present-tense language

suggests the abuse was ongoing and indicates that she had mistaken Cochern as her

abuser as he was no longer in contact with her and her family at that point in time.

Cochern, relying on the same argument put forth in his first assignment of error, also

argues that the time line presented by the state and the conflicting testimony of J.T. and

her Mother as to this time line suggests his innocence. Specifically, he points to J.T.’s

testimony that she remembers the abuse that took place while Cochern lived with her
family to have occurred after the abuse that took place in the upstairs unit apartment near

West 40th Street and Clark Avenue.

       {¶38}   Cochern also points to Mother’s testimony that he lived with them in a

downstairs unit apartment on West 44th Street before they moved to the upstairs unit

apartment. We find these arguments unpersuasive.

       {¶39} This court has held that “a defendant is not entitled to reversal on manifest

weight grounds merely because certain aspects of a witness’s testimony are not credible

or were inconsistent or contradictory.” State v. Nitsche, 2016-Ohio-3170, 66 N.E.3d

135, ¶ 45 (8th Dist.). “The decision whether, and to what extent, to believe the testimony

of a particular witness is ‘within the peculiar competence of the factfinder, who has seen

and heard the witness.’” Id., quoting State v. Johnson, 8th Dist. Cuyahoga No. 99822,

2014-Ohio-494, ¶ 54.

       {¶40} Additionally, we note that the exact date and time of the offense is not an

essential element required to secure a rape conviction. State v. Sellards, 17 Ohio St.3d

169, 171, 478 N.E.2d 781 (1985). This court has noted “‘[i]t is well established that,

particularly in cases involving sexual misconduct with a child, the precise times and dates

of the alleged offense or offenses oftentimes [sic] cannot be determined with

specificity.’” State v. Valentine, 8th Dist. Cuyahoga No. 71301, 1997 Ohio App. LEXIS

3094, *4 (July 17, 1997), quoting State v. Daniel, 97 Ohio App.3d 548, 556, 647 N.E.2d

174 (10th Dist.1994). In Valentine, we further noted that “[t]his rule in Ohio has been

established because ‘in many cases involving child sexual abuse, the victims are children
of tender years who are simply unable to remember exact dates and times, particularly

where the crimes involve a repeated course of conduct over an extended period of time.’”

Id., quoting State v. Mundy, 99 Ohio App.3d 275, 296, 650 N.E.2d 502 (2d Dist.1994).

       {¶41} Upon review of the entire record, we do not find that the evidence presented

weighs heavily against Cochern’s convictions. J.T. provided detailed testimony as to

each act of sexual abuse charged in the indictment. She described in detail the areas in

each home in which she remembered each act to have occurred. She identified Cochern

as her abuser when she made the allegations at the age of 7 and again at trial when she

was 11 years old, noting that he was the only person she knew by the name of “Chadd.”

The jury’s finding that her testimony was credible was reasonable despite her possible

confusion as to the sequence of each instance of sexual abuse given her young age at the

time of the abuse.

       {¶42} We find that Cochern’s argument that the police investigation of J.T.’s

allegations was “minimal” and so focused on him that “the investigating officer failed to

collect essential evidence” has no bearing on the evidence the jury heard in reaching its

determination of his guilt.

       {¶43} Based on the foregoing, we do not find that the jury lost its way and created

such a manifest miscarriage of justice that Cochern’s convictions are against the manifest

weight of the evidence. Accordingly, the second assignment of error is overruled.

                                      Speedy Trial
       {¶44} In the third assignment of error, Cochern relies on federal case law for the

proposition that his March 25, 2016 motion to reinstate his bond was the functional

equivalent of a demand for speedy trial. He argues that the state violated his right to a

speedy trial because it failed to bring him to trial within 90 days of the filing of this

motion. Although this argument is creative, we ultimately find it unpersuasive.

       {¶45} The Ohio Supreme Court discussed the constitutional and statutory rights

to a speedy trial in State v. Baker, 78 Ohio St.3d 108, 676 N.E.2d 883 (1996):

       The right to a speedy trial is guaranteed by the Sixth Amendment to the

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

       Constitution.   The individual states are obligated under the Fourteenth

       Amendment to afford a person accused of a crime such a right. Klopfer v.

       North Carolina, 386 U.S. 213, 222-223, 87 S.Ct. 988, 993, 18 L.Ed.2d 1,

       7-8 (1967). However, the states are free to prescribe a reasonable period of

       time to conform to constitutional requirements. Barker v. Wingo, 407 U.S.

       514, 523, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101, 113 (1972). In response to

       this constitutional mandate, Ohio has enacted R.C. 2945.71 to 2945.73,

       which designate specific time requirements for the state to bring an accused

       to trial.

Id. at 110.

       {¶46} In arguing his speedy trial claim, Cochern conflates the distinct standards of

review and case law surrounding the separate constitutional and statutory rights to a
speedy trial.   Therefore, we will review his claim within the paradigms of both

constitutional and statutory speedy trial protections.

                           Constitutional Right to a Speedy Trial

       {¶47} Our review of a challenge of a constitutional speedy trial violation often

raises a mixed question of law and fact. State v. Barnes, 8th Dist. Cuyahoga No. 90847,

2008-Ohio-5472, ¶ 19. We apply a de novo review to the legal issues, but afford great

deference to any factual findings made by the trial court. Id. This court has held that in

cases such as the present matter, where the facts underlying a defendant’s claim of a

violation of his or her constitutional right to a speedy trial are undisputed and the trial

court made no findings, we apply a de novo standard of review. Id. In examining a

constitutional claim on speedy trial grounds, the statutory time requirements of R.C.

2945.71 to 2945.73 are not relevant; instead, courts should employ the balancing test

enunciated by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92

S.Ct. 2182, 33 L.Ed.2d 101 (1972). Barnes at ¶ 28.

       {¶48} In Barker, the United States Supreme Court identified the following factors

a reviewing courts should assess in determining whether a defendant was deprived of his

or her Sixth Amendment right to a speedy trial: (1) the length of the delay, (2) the reason

for the delay, (3) the accused’s assertion of his or her right to a speedy trial, and (4) the

prejudice to the accused as a result of the delay. Barker. The Barker court went on to

explain:

       We regard none of the four factors identified above as either a necessary or
       sufficient condition to the finding of a deprivation of the right of speedy
       trial. Rather, they are related factors and must be considered together with
       such other circumstances as may be relevant. In sum, these factors have no
       talismanic qualities; courts must still engage in a difficult and sensitive
       balancing process. But, because we are dealing with a fundamental right
       of the accused, this process must be carried out with full recognition that
       the accused’s interest in a speedy trial is specifically affirmed in the
       Constitution.

Id. at 533.

       {¶49} We note that “[t]he first factor, the length of the delay, is a ‘triggering

mechanism,’ determining the necessity of inquiry into the other factors.”           State v.

Robinson, 8th Dist. Cuyahoga No. 105243, 2017-Ohio-6895, ¶ 9, quoting State v. Triplett,

78 Ohio St.3d 566, 569, 679 N.E.2d 290, citing Barker at 530. Unless there is some

delay which is “presumptively prejudicial, there is no necessity for inquiry into the other

factors that go into the balance.” Id., quoting Barker at 530. Post-accusation delay

approaching one year is generally found to be presumptively prejudicial. Id., citing

Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), fn.

1.

       {¶50} Cochern’s speedy trial argument focuses only on the time from his rearrest

in March 2016 until trial in August 2016. As we discuss below, he acknowledges that

under Ohio law, his statuory speedy trial clock begins anew because he was capias from

December 2014 until March 2016. However, for purposes of his constitutional speedy

trial analysis, “[t]he length of the delay is measured from the date of the indictment or the

date of the arrest, whichever is earlier.” United States v. Marion, 404 U.S. 307, 320, 92

S.Ct. 455, 30 L.Ed.2d 468 (1971). Because a constitutional speedy trial analysis is less
formulaic than that of the statutory speedy trial protections under Ohio law, there is no

“clock” to restart, rather, under a constitutional speedy trial analysis, this time is

attributable to Cochern, as will be discussed below.

                                    Length of the Delay

       {¶51} We find the more than three-year period from Cochern’s initial arrest to the

commencement of trial was presumptively prejudicial. Accordingly, we must engage in

an inquiry of the Barker factors. “Once the Barker analysis is triggered, the length of

delay, beyond the initial threshold showing, is again considered and balanced against the

other relevant factors.” Robinson at  10.

       {¶52} In Robinson, we found that the length of the delay  17 months  weighed

only slightly in favor of the defendant Robinson, who was incarcerated on two unrelated

cases and was unaware of the charges against him. Id. at  13. Similarly, the almost

40-month delay in the present matter was in large part due to Cochern’s incarceration in

Lorain and Portage counties on unrelated matters and also attributable to his requests for

continuances and for new counsel.

       {¶53} In Triplett, the Ohio Supreme Court found that a 54-month delay did not

violate the defendant’s constitutional right to a speedy trial. The Triplett court noted that

one of the interests the Sixth Amendment was designed to protect is the freedom from

extended pretrial incarceration. We note that of the almost 40 months from Cochern’s

initial arrest to trial, Cochern served less than six months in jail cumulatively due to this
matter. Cochern’s lengthiest period of pretrial incarceration occurred after the trial court

had twice reinstated his bond after his failure to appear.

       {¶54} Accordingly, we find that this factor weighs only slightly in favor of

Cochern. Robinson at  13; Triplett at 569.

                                    Reason for the Delay

       {¶55} The second factor we must consider under Barker is the reason for the

delay. In determining if the reason for the delay should weigh in favor of the accused or

the state, if an accused caused or contributed to the delay, this factor would weigh heavily

against him or her.         Id., citing State v. Smith, 8th Dist. Cuyahoga No. 81808,

2003-Ohio-3524, ¶ 14. Here, the record reflects that from May 2013 until February

2015, all continuances were made at Cochern’s request with the exception of a

continuance of the trial date from March 18, 2014 until June 23, 2014 due to the assistant

county prosecutor’s unavailability. From December 2014 to March 2016, Cochern was

capias and unavailable to appear for trial due to his arrest and incarceration in another

county. Thereafter, trial was set for July 2016, but ultimately was reset to late August

2016 due to the trial court’s unavailability. We note that the majority of these delays,

notably the lengthiest period of delay, were attributable to Cochern’s actions. Under

Robinson, this factor weighs heavily against Cochern because he caused the majority of

the delay in this matter.

                     Cochern’s Assertion of his Right to a Speedy Trial
       {¶56} We next consider Cochern’s assertion of his right to a speedy trial. An

accused’s assertion of, or failure to assert, his or her right to a speedy trial is a factor to be

considered in determining whether his or her constitutional rights were violated. Id.,

citing Barker, 407 U.S. at 528, 92 S.Ct. 2182, 33 L.Ed.2d 101; Triplett, 78 Ohio St.3d at

570, 679 N.E.2d 290. Cochern, relying on Maples v. Stegall, 427 F.3d 1020, 1029 (6th

Cir.2005), argues that his March 2016 motion to reinstate his bond was a demand for

speedy trial. In Maples, the Sixth Circuit noted that it “recognizes a request for bail as

the functional equivalent of the request for a speedy trial.” Id., citing Redd v. Sowders,

809 F.2d 1266, 1271 (6th Cir.1987); Cain v. Smith, 686 F.2d 374, 384 (6th Cir.1982).

The Ohio Supreme Court has held that a defendant’s timely assertion should be afforded

moderate weight. Triplett at 570.

       {¶57} The strength of the defendant’s efforts in asserting his constitutional right to

a speedy trial must also be given consideration. Barker at 531 (“The strength of [a

defendant’s] efforts will be affected by the length of the delay, to some extent by the

reason for the delay, and most particularly by the personal prejudice, which is not always

readily identifiable, that he experiences. The more serious the deprivation, the more likely

a defendant is to complain.”) A delay from a defendant’s assertion of his constitutional

right to a speedy trial until the time he seeks dismissal on this basis must be weighted.

State v. Walker, 10th Dist. Franklin No. 06AP-810, 2007-Ohio-4666, ¶ 31. We note that

Cochern moved for dismissal of these charges on the day of trial, more than five months
after he filed the motion to reinstate his bond, which he argues was a demand for speedy

trial.

                                          Prejudice

         {¶58} Lastly, under Barker, we consider prejudice to Cochern as a result of the

delay. “In Barker, the United States Supreme Court identified three interests that the

speedy-trial right is designed to protect: (1) oppressive pretrial incarceration, (2) the

anxiety and concern of the accused, and (3) the possibility that the accused’s defense will

be impaired.” Robinson at ¶ 17, citing Barker at 532. “Of these, the most serious is the

last, because the inability of a defendant adequately to prepare his case skews the fairness

of the entire system.” Id., quoting Barker. A defendant is prejudiced if a witness dies,

disappears, or is unable to recall accurately events of the distant past. Id.

         {¶59} Cochern’s argument focuses on the five-month delay from his rearrest to

trial. He does not argue that this delay or the larger 40-month delay prevented him from

mounting a defense nor does he make a showing of prejudice.

         {¶60} In balancing the foregoing, we do not find that Cochern’s constitutional

speedy trial right was violated. Cochern contributed to the delay, delayed forcefully

asserting his right to a speedy trial, and cannot articulate any prejudice resulting from the

delay.

                              Statutory Right to a Speedy Trial

         {¶61} We next consider Cochern’s statutory right to a speedy trial. Our standard

of review of an appeal raising a speedy trial issue is to count the expired days as directed
by R.C. 2945.71, et seq.      Cleveland v. Sheldon, 8th Dist. Cuyahoga No. 82319,

2003-Ohio-6331, ¶ 18. Where we find ambiguity, we construe the record in favor of the

accused. Id.

       {¶62} We note that Ohio’s statutory speedy trial provisions of R.C. 2945.71, et

seq., are mandatory and must be strictly complied with by the trial court. Id. at ¶ 16.

Under R.C. 2945.71(C)(2), a person against whom a felony charge is pending must be

brought to trial within 270 days after his arrest. R.C. 2945.71(E) provides that for

purposes of computing time under R.C. 2945.71(C)(2), “each day during which the

accused is held in jail in lieu of bail on the pending charges shall be counted as three

days.” R.C. 2945.72 lists the following circumstances under which the time set forth in

R.C. 2945.71 is tolled:

       (A) Any period during which the accused is unavailable for hearing or trial,
       by reason of other criminal proceedings against him, within or outside the
       state * * * provided that the prosecution exercises reasonable diligence to
       secure his availability;

                                          ***

       (E) Any period of delay necessitated by reason of a plea in bar or
       abatement, motion, proceeding, or action made or instituted by the accused;

                                          ***

       (H) The period of any continuance granted on the accused’s own motion,
       and the period of any reasonable continuance granted other than upon the
       accused’s own motion.

       {¶63} Cochern acknowledges that his own actions resulted in delaying trial in the

present matter from December 2014 until March 2016, during which time he was
capiased and unavailable for trial because he was incarcerated in another jurisdiction.

Cochern also recognizes that in light of this self-made delay, his speedy trial clock under

R.C. 2945.71 began anew on March 18, 2016 under State v. Bauer, 61 Ohio St.2d 83, 399

N.E.2d 555 (1980) (holding that a defendant who fails to appear at a scheduled trial, and

whose trial must therefore be rescheduled for a later date, waives his right to assert the

provisions of R.C. 2945.71 through 2945.73 for that period of time which elapses from

his initial arrest to the date he is subsequently rearrested if he forfeited his appearance

bond.)

         {¶64} From the time of his rearrest on March 18, 2016, Cochern’s speedy trial

time ran 3-for-1 under R.C. 2945.72 because he was incarcerated. Accordingly, from

March 18 until March 23, 2016, 15 speedy trial days elapsed. Cochern argues that after

he asserted his right to a speedy trial by filing a motion to reinstate his bond on March 25,

2016, nothing occurred that served to toll his speedy trial time. The docket reflects,

however, multiple continuances of pretrial conferences made at Cochern’s request on

March 24, April 13, May 11, June 1, and June 20, 2016. Under, R.C. 2945.72(E) and

(H), these continuances tolled his statutory speedy trial clock from March 24 until July

14, 2016. We note that Cochern’s motion for reinstatement of his bond, relevant to a

constitutional speedy trial analysis, is not relevant to a calculation of his statutory speedy

trial time.

         {¶65} From July 14, 2016, to the scheduled trial date of July 27, 2016, Cochern’s

speedy trial time ran from 21 to 54 days. On July 27, 2016, the trial court set a new final
pretrial and a new trial date of August 29, 2016, due to its unavailability because of a trial

in another matter.

       {¶66} R.C. 2945.72 provides that a defendant’s statutory speedy trial time may be

tolled by a “period of any reasonable continuance granted other than upon the accused’s

own motion.” This court has held that “any requests by either the state or the court itself

for a continuance are infringements upon the defendant’s constitutional right, and, thus,

subject to scrutiny; consequently, the grounds for the request must be set forth in a journal

entry.” State v. Phillips, 8th Dist. Cuyahoga No. 82886, 2004-Ohio-484, citing State v.

Baker, 92 Ohio App.3d 516, 636 N.E.2d 363 (8th Dist.1993). The Ohio Supreme Court

has held that “[t]he record of the trial court must in some manner affirmatively

demonstrate that a sua sponte continuance by the court was reasonable in light of its

necessity or purpose.” State v. Lee, 48 Ohio St.2d 208, 209, 357 N.E.2d 1095 (1976).

       {¶67} Here, the trial court’s journal entry stated that the “court engaged in trial in

case number 600352.” We find that this 33-day continuance was reasonable in both its

length and purpose.

       {¶68} Based on the foregoing, we find that Cochern’s statutory right to a speedy

trial was not violated. Accordingly, the trial court did not err in denying Cochern’s

motion to dismiss.

       {¶69} Having found no violation of Cochern’s constitutional and statutory speedy

trial rights, his third assignment of error is overruled.

       {¶70} Judgment is affirmed.
      It is ordered that appellee recover from appellant the 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.




MARY EILEEN KILBANE, PRESIDING JUDGE

 MELODY J. STEWART, J., and
 PATRICIA ANN BLACKMON, J., CONCUR
