[Cite as State v. Frazier, 2012-Ohio-1198.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97178



                                       STATE OF OHIO
                                                PLAINTIFF-APPELLEE

                                                 vs.

                                       HUBIE FRAZIER
                                                DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-545396

        BEFORE:           Cooney, J., Stewart, P.J., and Sweeney, J.

        RELEASED AND JOURNALIZED: March 22, 2012
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ATTORNEY FOR APPELLANT

Michael J. Manuszak
2905 Paxton Road
Shaker Heights, OH 44120


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Marc D. Bullard
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
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COLLEEN CONWAY COONEY, J.:

       {¶1} Defendant-appellant, Hubie Frazier (“Frazier”), appeals his convictions for

attempted murder, felonious assault, and having a weapon while under disability.

Finding no merit to the appeal, we affirm.

       {¶2} In December 2010, Frazier was indicted on one count of attempted murder

with a firearm specification, two counts of kidnapping, two counts of felonious assault,

and one count of having a weapon while under disability.        In July 2011, Frazier waived

his right to a jury trial.   The court held a bench trial and found Frazier guilty of having a

weapon while under disability, attempted murder, and both counts of felonious assault.

The two counts of felonious assault were merged with attempted murder, and the State

elected to have Frazier sentenced for attempted murder.       The court sentenced Frazier to

eight years in prison for the attempted murder conviction, with three years on the firearm

specification to be served consecutive to the eight years.     The court also sentenced him

to four years for the weapon under disability conviction, to run consecutively to the other

sentences, for an aggregate of 15 years in prison.

       {¶3} Frazier now appeals, raising three assignments of error.
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                               Sufficiency of the Evidence

      {¶4} In his first assignment of error, Frazier argues that the trial court erred in

overruling his motion for acquittal because his conviction was not supported by sufficient

evidence.

      {¶5} Pursuant to Crim.R. 29(A), a court shall not order an entry of a judgment of

acquittal if the evidence is such that reasonable minds can reach different conclusions as

to whether each material element of a crime has been proven beyond a reasonable doubt.

State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184, syllabus (1978); see also State v.

Apanovitch, 33 Ohio St.3d 19, 23, 514 N.E.2d 394 (1987); State v. Davis, 49 Ohio

App.3d 109, 113, 550 N.E.2d 966 (8th Dist.1988).

      {¶6} In State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶

113, the Ohio Supreme Court explained the standard for sufficiency of the evidence:

      Raising the question of whether the evidence is legally sufficient to support the

      jury verdict as a matter of law invokes a due process concern.             State v.

      Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. In reviewing such a

      challenge, “[t]he 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 (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus,
                                             5

       following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d

       560.

       {¶7} In a sufficiency review, however, this court does not make determinations of

credibility.   Rather, the court decides, based on the evidence presented if believed,

whether any rational trier of fact could have found the defendant guilty of the crimes

charged.

       {¶8} Frazier was convicted of attempted murder pursuant to R.C. 2923.02(B),

felonious assault pursuant to R.C. 2903.11(A)(1) & (2), and having a weapon while under

disability pursuant to R.C. 2923.13(A)(2).    Frazier argues that the evidence presented is

insufficient because the victim’s identification was unreliable.

       {¶9} When a witness has been confronted with a suspect before trial, a court is not

required to suppress the identification of the suspect unless the confrontation was

unnecessarily suggestive of the suspect’s guilt and the identification was unreliable under

all the circumstances.   In re Henderson, 8th Dist. No. 79716, 2002-Ohio-483. This

court has held that, even presuming a pretrial identification procedure is impermissibly

suggestive, an in-court identification is permissible where the prosecution establishes by

clear and convincing evidence that the witness had a reliable, independent basis for the

identification based on prior independent observations made at the scene of the crime.

State v. Tate, 8th Dist. No. 81577, 2003-Ohio-1835, citing In re Henderson.     Moreover,

no due process violation will be found where an identification does not stem from an
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impermissibly suggestive confrontation but is instead the result of observations at the

time of the crime. Id.

       {¶10} In order to determine the reliability of the identification, a court must

consider (1) the witness’s opportunity to view the suspect at the time of the incident, (2)

the witness’s degree of attention, (3) the accuracy of the witness’s prior description, (4)

the witness’s certainty when identifying the suspect at the time of the confrontation, and

(5) the length of time elapsed between the crime and the identification. State v. Waddy,

63 Ohio St.3d 424, 439, 588 N.E.2d 819 (1992), citing Neil v. Biggers, 409 U.S. 188,

199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

       {¶11} The following facts were adduced at trial.    The victim in the instant case,

Anthony Colvin (“Colvin”), testified that he and Frazier had grown up in the same area of

the “projects” and had known each other for years.     Colvin testified that he and Frazier

had a verbal and physical altercation at the Gotcha Inn months before the shooting.

Colvin admitted punching Frazier in the face, knocking him out.            In the months

following the altercation, Colvin had seen Frazier at the Gotcha Inn and assumed that

their relationship was amicable.     However, Colvin testified that on the evening of

December 11, 2010, while at the Gotcha Inn, Frazier shot him multiple times.

       {¶12} Regarding Colvin’s identification of Frazier, the record reflects that Colvin

had time to observe Frazier during the shooting and knew him previously.            Colvin

testified that as he headed toward the restroom door, Frazier approached him. The two
                                           7

men were facing each other when Frazier shot Colvin at close range.        Colvin testified

that he saw Frazier smile at him when he fired the shots.        While Colvin was being

driven to the hospital, he told the driver of the car, Sarena Clark (“Clark”), “[i]f I die,

Hubo shot me,” referring to Frazier.

      {¶13} Approximately six weeks after the shooting, Colvin identified Frazier in two

separate photo arrays presented to him while he was still in the hospital.      Moreover,

Colvin identified Frazier during trial.     Thus, the State established by clear and

convincing evidence that Colvin had a reliable independent basis for identifying Frazier.

      {¶14} Having found Colvin’s identification of Frazier to be reliable, in

conjunction with the additional evidence and testimony presented at trial, Frazier’s

convictions are supported by sufficient evidence.     Thus, the trial court did not err in

denying Frazier’s Rule 29 motion.

      {¶15} Accordingly, the first assignment of error is overruled.
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                                  Identification Testimony

       {¶16} In his second assignment of error, Frazier argues that the trial court erred in

overruling his objection to testimony presented at trial regarding Colvin’s identification

of Frazier.

       {¶17} The admission or exclusion of evidence is a matter left to the trial court’s

sound discretion; therefore, it will not be disturbed absent an abuse of discretion. State

v. Lundy, 41 Ohio App.3d 163, 169, 535 N.E.2d 664 (1st Dist.1987); State v. Duncan, 53

Ohio St.2d 215, 219, 373 N.E.2d 1234 (1978). An abuse of discretion is a decision that

is unreasonable, arbitrary, or unconscionable, rather than a mere error in judgment.

Blakemore v. Blakemore, 5 Ohio St.2d 217, 215 N.E.2d 384 (1983).

       {¶18} At trial, Clark testified that while she was driving Colvin to the hospital, he

told her “[i]f I die, Hubo shot me.”   Frazier’s trial counsel objected to this testimony, but

the court overruled the objection, citing the “dying declaration” hearsay exception in

support of the ruling.     Frazier now argues that the trial court erred in overruling his

objection.

       {¶19} We agree that Clark’s testimony is inadmissible under the dying declaration

exception, which states:

       The following are not excluded by the hearsay rule if the declarant is
       unavailable as a witness:

       ***
                                            9

       In a prosecution for homicide or in a civil action or proceeding, a statement

       made by a declarant, while believing that his or her death was imminent,

       concerning the cause or circumstances of what the declarant believed to be

       his or her impending death. (Emphasis added.) Evid.R. 804(B)(2)

       {¶20} In the instant case, the State was not prosecuting a homicide, nor was

Colvin unavailable as a witness.     In fact, prior to Clark’s testimony, Colvin himself

testified that he made that statement to Clark. Thus, although Clark’s testimony was

inadmissible under the dying declaration exception, it falls within the “excited utterance”

exception, for which the availability of the declarant is immaterial.

       {¶21} Evid.R. 803(2) defines an “excited utterance” as “[a] statement relating to a

startling event or condition made while the declarant was under the stress of excitement

caused by the event or condition.” Four prerequisites must be satisfied in order for an

excited utterance to be admissible: (1) an event startling enough to produce a nervous

excitement in the declarant, (2) the statement must have been made while still under the

stress of excitement caused by the event, (3) the statement must relate to the startling

event, and (4) the declarant must have personally observed the startling event. See State

v. Brown, 112 Ohio App.3d 583, 601, 679 N.E.2d 361 (1996).

       {¶22} It is apparent from the record in this case that the State laid a proper

foundation for the admission of Colvin’s statement as an excited utterance. Having

been shot, Colvin was clearly startled enough to produce         nervous excitement.   The
                                           10

evidence reflects that he was still under the excitement of the startling event, having been

rushed from the restroom to the car, when he made the statement.      His statement related

directly to the startling event that he personally witnessed.   Thus, we find the statement

had the requisite guarantees of trustworthiness and was an excited utterance.

       {¶23} In turn, any error associated with the court’s admission of the evidence

under an incorrect hearsay exception is harmless where the evidence is admissible under

a different hearsay exception and Frazier had the opportunity to fully cross-examine the

declarant.   Therefore, the trial court did not abuse its discretion in admitting this

testimony.

       {¶24} Accordingly, the second assignment of error is overruled.

                                    Motion to Dismiss

       {¶25} In his third assignment of error, Frazier argues that the trial court erred in

denying his pro se motion to dismiss for lack of a speedy trial.    Frazier also argues that

the trial court erred in not holding a hearing to address his pro se motion for new counsel.

       {¶26} The right to counsel of one’s choice is an essential element of the Sixth

Amendment right to have the assistance of counsel for one’s defense. State v. Keenan,

8th Dist. No. 89554, 2008-Ohio-807.       The right is not absolute, however, and courts

have “wide latitude in balancing the right to counsel of choice against the needs of

fairness and against the demands of its calendar.” United States v. Gonzalez-Lopez, 548

U.S. 140, 152, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006).      Therefore, decisions relating to
                                          11

the substitution of counsel are within the sound discretion of the trial court.   Wheat v.

United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988).

      {¶27} In order to justify the discharge of court-appointed counsel, a defendant

must show “good cause, such as a conflict of interest, a complete breakdown in

communication, or an irreconcilable conflict which leads to an apparently unjust result.”

State v. Pruitt, 18 Ohio App.3d 50, 480 N.E.2d 499 (8th Dist.1984). Further, when the

timing of a request for new counsel is an issue, a trial court may make a determination as

to whether the appellant’s request for new counsel was made in bad faith. State v.

Graves, 9th Dist. No. 98CA007029, 1999 WL 1215161 (Dec. 15, 1999). A motion for

new counsel made on the day of trial “intimates such motion is made in bad faith for the

purposes of delay.”   State v. Haberek, 47 Ohio App.3d 35, 41, 546 N.E.2d 1361 (8th

Dist.1988).

      {¶28} In this matter, we find no abuse of discretion in connection with the trial

court’s denial of Frazier’s pro se motion for new counsel.   The Sixth Amendment does

not guarantee “rapport” or a “meaningful relationship” between client and counsel.

State v. Hennes, 79 Ohio St.3d 53, 65, 1997-Ohio-405, 679 N.E.2d 686, citing Morris v.

Slappy, 461 U.S. 1, 13-14, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983).           Frazier made

unsupported claims that counsel had refused to communicate with him.          In addition,

Frazier raised these issues in the middle of trial.   Nothing in the record suggests that
                                            12

there was such a breakdown of communication between attorney and client as to

constitute the denial of counsel.

       {¶29}   Frazier also complains that the court erred by failing to rule on his pro se

motion to dismiss on speedy trial grounds, asserting that there is no indication in the

record that the trial court addressed his motion.    When a court fails to rule on a motion,

we presume that the motion was denied.       Univ. Mednet v. Blue Cross & Blue Shield of

Ohio, 126 Ohio App.3d 219, 236, 710 N.E.2d 279 (8th Dist.1997); see also State v.

Huber, 8th Dist. No. 93923, 2011-Ohio-62.          Moreover, there is no requirement that a

court hold a hearing on a motion to dismiss for want of a speedy trial when the court is

able to determine the issue from the record.    See State v. Freeman, 8th Dist. No. 85137,

2005-Ohio-3480, at ¶ 62, reversed on other grounds, In re Ohio Criminal Sentencing

Statutes Cases, 109 Ohio St.3d 313, 2006-Ohio-2109, 847 N.E.2d 1174. Frazier makes

no substantive argument on the merits of his motion to dismiss. The State has rebutted

Frazier’s claim with a calculation demonstrating there is no merit to the alleged speedy

trial violation. Thus, we need not address the merits of Frazier’s motion to dismiss.

       {¶30} Accordingly, the third assignment of error is overruled.

       {¶31} Judgment affirmed.

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

       The court finds there were reasonable grounds for this appeal.
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      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.


______________________________________________
COLLEEN CONWAY COONEY, JUDGE

MELODY J. STEWART, P.J., and
JAMES J. SWEENEY, J., CONCUR
