[Cite as State v. Jaeger, 2018-Ohio-2994.]


STATE OF OHIO                     )                      IN THE COURT OF APPEALS
                                  )ss:                   NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                            C.A. No.     17CA0072-M

        Appellee

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
ENOCH JAEGER                                             COURT OF COMMON PLEAS
                                                         COUNTY OF MEDINA, OHIO
        Appellant                                        CASE No.   16-CR-0624

                                  DECISION AND JOURNAL ENTRY

Dated: July 30, 2018



        SCHAFER, Presiding Judge.

        {¶1}     Appellant, Enoch Jaeger, appeals his convictions in the Medina County Court of

Common Pleas for vandalism, breaking and entering, theft, and engaging in a pattern of corrupt

activity. For the reasons that follow, we affirm.

                                                    I.

        {¶2}     In September and October 2016, there were a series of breaking and entering

offenses committed at gas station convenience stores in Medina County. During each offense,

two men would use a large rock or block of concrete to smash open the glass door of the store

then enter it carrying large garbage cans.       Once inside, they quickly collected cartons of

cigarettes inside the garbage cans then exited less than a minute later.

        {¶3}     On October 12, 2016, Mr. Jaeger and an accomplice attempted to commit a

similar offense. The gas station they targeted, however, had been the site of one of the earlier

offenses and had modified its front door in response. The men, therefore, were unable to break
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through the door. As they were driving away from the gas station in the accomplice’s car, they

were stopped by a sheriff’s deputy for having only one operating headlight.              The deputy

determined that there were arrest warrants out for both Mr. Jaeger and the accomplice, so he took

them into custody. During a search of the car, law enforcement found clothing that matched the

clothing worn by the perpetrators of each of the gas station break-ins. They also found two

garbage cans and a large rock in the trunk of the car. Mr. Jaeger later told a detective that he had

knowledge of the workings of the entire operation and that, in exchange for immunity, he could

tell the detective the identities of all of the individuals involved in the offenses, as well as those

involved in transporting and selling the stolen cigarettes.

       {¶4}    The Grand Jury indicted Mr. Jaeger for one count of vandalism, four counts of

breaking and entering, three counts of theft, and one count of engaging in a pattern of corrupt

activity. Following a number of continuances of the trial date, a jury found him guilty of the

offenses. The trial court sentenced Mr. Jaeger to five years imprisonment. Mr. Jaeger has

appealed, assigning three errors. We have reordered the second and third assignments of error

for ease of disposition.

                                                 II.

                                   ASSIGNMENT OF ERROR I

       The trial court err[ed] by denying [Mr. Jaeger]’s motion to dismiss for
       speedy trial violations.

       {¶5}    Mr. Jaeger argues that the trial court should have dismissed the charges because

the State violated his right to a speedy trial. A trial court’s determination of speedy trial issues

presents a mixed question of law and fact. State v. Fields, 9th Dist. Wayne No. 12CA0045,

2013–Ohio–4970, ¶ 8. “When reviewing an appellant’s claim that he was denied his right to a

speedy trial, this Court applies the de novo standard of review to questions of law and the clearly
                                                 3


erroneous standard of review to questions of fact.” Id., quoting State v. Downing, 9th Dist.

Summit No. 22012, 2004–Ohio–5952, ¶ 36.

       {¶6}    “The right of an accused to a speedy trial is recognized by the Constitutions of

both the United States and the State of Ohio.” State v. Pachay, 64 Ohio St.2d 218, 219 (1980).

“The statutory speedy trial provisions, R.C. 2945.71 et seq., constitute a rational effort to enforce

the constitutional right to a public speedy trial of an accused charged with the commission of a

felony or a misdemeanor * * *.” Id. at syllabus. Accordingly, “for purposes of bringing an

accused to trial, the statutory speedy trial provisions of R.C. 2945.71 et seq. and the

constitutional guarantees found in the United States and Ohio Constitutions are coextensive.”

State v. O’Brien, 34 Ohio St.3d 7, 9 (1987).

       {¶7}    R.C. 2945.71(C)(2) provides that “[a] person against whom a charge of felony is

pending * * * [s]hall be brought to trial within two hundred seventy days after the person’s

arrest.” “[E]ach day during which the accused is held in jail in lieu of bail on the pending charge

shall be counted as three days.” R.C. 2945.71(E). Thus, if the accused is held in jail in lieu of

bail, the time within which the trial must be held is 90 days. See id. When calculating speedy

trial time, the day of arrest is not to be counted. State v. Friedhof, 9th Dist. Medina No. 2505-M,

1996 Ohio App. LEXIS 3018, *8 (July 10, 1996), citing State v. Steiner, 71 Ohio App.3d 249,

250-251 (9th Dist.1991); See also Crim.R. 45(A). “Upon motion made at or prior to the

commencement of trial, a person charged with an offense shall be discharged if he is not brought

to trial within the time required by [R.C. 2945.71].” R.C. 2945.73(B).

       {¶8}    An accused may waive his right to a speedy trial, so long as the waiver is

knowingly and voluntarily made. O’Brien at 9. Such a waiver must be in writing or expressly

made in open court on the record. State v. King, 70 Ohio St.3d 158 (1994), at syllabus.
                                                 4


Furthermore, a waiver may be limited or unlimited in duration. State v. Bray, 9th Dist. Lorain

No. 03CA008241, 2004-Ohio-1067, ¶ 8.

       {¶9}    The trial court originally scheduled Mr. Jaeger’s trial for January 10, 2017. Upon

motions of Mr. Jaeger’s counsel, the trial date was continued to February, then March, then May,

then June, and, finally, to July 24, 2017. Mr. Jaeger acknowledges that his attorney moved for

many of the continuances. He argues that the last one, however, should not be charged to him.

According to the transcript of the June hearing, Mr. Jaeger had accepted a plea agreement. After

arriving on the day of trial to change his plea, however, Mr. Jaeger informed the prosecution that

he had changed his mind about their agreement. The court inquired whether the trial could still

go ahead later that day or the next, but the prosecutor answered that they did not have a jury and

that its witnesses were not present. Mr. Jaeger’s counsel then told the court that, since it was Mr.

Jaeger who had changed his mind, he was moving for a continuance of the trial. Mr. Jaeger is

bound by his counsel’s request even if it was without his consent. State v. McBreen, 54 Ohio

St.2d 315 (1978), syllabus.

       {¶10} Mr. Jaeger argues that even if his trial was held within the time limits set out in

R.C. 2945.71, the delay still violated his constitutional right to a speedy trial. As noted earlier,

however, the Ohio Supreme Court has held that a defendant’s constitutional right to a speedy

trial is coextensive with his statutory rights, except in some limited circumstances not implicated

here. O’Brien at 9, citing State v. Ladd, 56 Ohio St.2d 197, 201 (1978). Even if we were to

conclude that an exception to the general rule applied here, we would then have to make a

threshold determination concerning the length of the trial delay. State v. Adams, 144 Ohio St.3d

429, 2015-Ohio-3954, ¶ 89. Until a delay is presumptively prejudicial, which means that it

“approaches one year in length[,]” there is no need to engage in a constitutional balancing test.
                                                  5


Id. at ¶ 89-90. The Grand Jury indicted Mr. Jaeger in October 2016. Mr. Jaeger’s trial was nine

months later, falling short of the “approach[ing] one year” requirement, even without omitting

the continuances granted at Mr. Jaeger’s request. Id. at ¶ 89. We, therefore, conclude that Mr.

Jaeger’s constitutional right to a speedy trial was not violated and that the trial court did not err

when it denied his motion to dismiss. Mr. Jaeger’s first assignment of error is overruled.

                                  ASSIGNMENT OF ERROR III

       The trial court err[ed] when the jury found [Mr. Jaeger] guilty without the
       greater weight of the evidence.

       {¶11} Mr. Jaeger next argues that there was insufficient evidence to convict him of the

offenses. A challenge to the sufficiency of a criminal conviction presents a question of law,

which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out

this review, our “function * * * 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.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

After such an examination and taking the evidence in the light most favorable to the prosecution,

we must decide whether “any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.” Id. Although we conduct a de novo review when

considering a sufficiency of the evidence challenge, the appellate court does not resolve

evidentiary conflicts or assess the credibility of witnesses as those functions belong to the trier of

fact. State v. Tucker, 9th Dist. Medina No. 14CA0047-M, 2015-Ohio-3810, ¶ 7.

       {¶12} Mr. Jaeger argues that the State failed to prove that he was involved in all of the

offenses. Although he admits to being involved in attempting to break into a gas station before

his arrest on October 12, 2016, he argues that there was no evidence connecting him to the other

offenses.
                                                6


       {¶13} The State presented video recordings of the incidents from the gas stations’

surveillance systems. There were two men during each offense, wearing similar clothing each

time. One of the men was acknowledged to be Mr. Jaeger’s accomplice. The other man was

taller and wore a blue sweatshirt that had the letters “EXP” across the front of it. He also wore

gray pants and pointed dress shoes during the offenses. After law enforcement stopped Mr.

Jaeger and the accomplice on October 12, 2016, they found a blue sweatshirt with the letters

EXP across the front of it on the seat behind where Mr. Jaeger had been sitting. The car also

contained gloves, hats, and facial coverings similar to the ones used during the offenses. Mr.

Jaeger was wearing gray pants and pointed dress shoes at the time of the stop.

       {¶14} According to Mr. Jaeger, because the faces of the offenders were covered, it could

have been different individuals wearing the blue sweatshirt and other clothes during each

offense. Detective Paul Schismenos testified, however, that he had studied the movements and

mannerisms of the person wearing the blue sweatshirt and they were consistent from one incident

to the next. The person wearing the blue sweatshirt was also of a consistent height and body

shape from incident to incident. He also testified that the two men worked together in the same

way during each break-in.

       {¶15} The evidence establishing that Mr. Jaeger was involved in all of the offenses is

circumstantial, but circumstantial evidence has the same probative value as direct evidence.

Jenks, 61 Ohio St.3d 259 at paragraph one of the syllabus. Upon review of the record, viewing

the evidence in a light most favorable to the prosecution, we conclude that it was sufficient, if

believed, to demonstrate beyond a reasonable doubt that Mr. Jaeger was one of the men

committing each of the gas station break-ins.
                                                 7


       {¶16} Mr. Jaeger also argues that the State failed to prove that he was involved in a

criminal enterprise. The jury convicted Mr. Jaeger of engaging in a pattern of corrupt activity

under R.C. 2923.32(A)(1). That section provides that “[n]o person employed by, or associated

with, any enterprise shall conduct or participate in, directly or indirectly, the affairs of the

enterprise through a pattern of corrupt activity * * *.” “A ‘pattern’ requires the commission of

two or more of the predicate offenses (also referred to as ‘incidents of corrupt activity’) listed in

R.C. 2923.31(I).” State v. Willan, 144 Ohio St.3d 94, 2015-Ohio-1475, ¶ 5, quoting R.C.

2923.31(E). The predicate-offense list includes breaking and entering under R.C. 2911.13. R.C.

2923.31(I)(2)(a). “‘Enterprise’ includes any individual, sole proprietorship, partnership, limited

partnership, corporation, trust, union, government agency, or other legal entity, or any

organization, association, or group of persons associated in fact although not a legal entity.”

R.C. 2923.31(C).

       {¶17} Mr. Jaeger’s argument focuses again on his assertion that he was only involved in

one of the offenses. As previously noted, however, there is circumstantial evidence that Mr.

Jaeger was one of the two men that committed each breaking and entering offense. Mr. Jaeger

also told law enforcement that he could provide the names of all of the individuals involved in

the sale of the stolen cigarettes. Upon review of the record, we conclude that there was sufficient

evidence that Mr. Jaeger was a member of an enterprise that engaged in a pattern of corrupt

activities. Mr. Jaeger’s third assignment of error is overruled.

                              SECOND ASSIGNMENT OF ERROR

       The jury verdict is against the manifest weight of the evidence.

       {¶18} Mr. Jaeger also argues that his convictions are against the weight of the evidence.

A sufficiency challenge is legally distinct from a manifest weight challenge. Thompkins, 78
                                                 8


Ohio St.3d at 387. When applying the manifest weight standard, we are required to consider the

whole record, “weigh the evidence and all reasonable inferences, consider the credibility of the

witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly

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

reversed and a new trial ordered.” State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

Courts are cautioned to only reverse a conviction on manifest weight grounds “in exceptional

cases,” State v. Carson, 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340,

where the evidence “weighs heavily against the conviction,” Thompkins at 387.

       {¶19} Mr. Jaeger’s manifest weight argument is similar to his sufficiency argument. He

argues that there was no physical evidence tying him to any of the offenses except the one

attempted break-in and that, if he was not involved in the other offenses, he could not be

convicted of engaging in a pattern of corrupt activity.

       {¶20} On cross-examination, Mr. Jaeger did not challenge Detective Schismenos’s

testimony that the man wearing the blue sweatshirt had the same height and build in each

surveillance video, moved in the same way and had the same mannerisms, or that the two men

appeared to work together in the same way during each offense. There were also no other shoes

found with Mr. Jaeger at the time of his arrest, which would have been expected if the

accomplice had simply recruited different men to wear the same blue sweatshirt, gray pants, and

pointed dress shoes outfit during the offenses. Upon review of the record, we cannot say that the

jury lost its way and committed a manifest miscarriage of justice when it found that Mr. Jaeger

was one of the two men involved in each of the offenses or that he engaged in a pattern of

corrupt activity. Mr. Jaeger’s second assignment of error is overruled.

                                                III.
                                                 9


       {¶21} Mr. Jaeger’s assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT




CARR, J.
TEODOSIO, J.
CONCUR.
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APPEARANCES:

RICHARD BARBERA, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.
