[Cite as State v. Vasquez, 2014-Ohio-224.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                   No. 13AP-366
v.                                                  :          (C.P.C. No. 12CR-09-4518)

Nestor E. Vasquez,                                  :     (REGULAR CALENDAR)

                 Defendant-Appellant.               :



                                             D E C I S I O N

                                    Rendered on January 23, 2014


                 Ron O'Brien, Prosecuting Attorney, and Valerie Swanson,
                 for appellee.

                 The Law Office of Jennifer L. Coriell, LLC, and Jennifer L.
                 Coriell, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

SADLER, P.J.
        {¶ 1} Defendant-appellant, Nestor E. Vasquez, appeals from the judgment of the
Franklin County Court of Common Pleas convicting him of felonious assault and
attempted murder with corresponding firearm specifications. For the following reasons,
we affirm the judgment of the trial court.
I. BACKGROUND
        {¶ 2} On September 5, 2012, appellant was indicted in Franklin County case No.
12CR-4518 for one count of felonious assault with specification, in violation of R.C.
2903.11, and attempted murder with specification, in violation of R.C. 2923.02 as it
relates to R.C. 2903.02. The indicted charges arose out of the August 26, 2012 shooting of
No. 13AP-366                                                                             2


Santos Guerrero. On November 21, 2012, appellant was indicted in Franklin County case
No. 12CR-5966 for one count of heroin possession, in violation of R.C. 2925.11,
concerning heroin found in appellant's apartment on the day of the shooting. According
to the record, at the latest, appellant was served with the second indictment on November
26, 2012.
       {¶ 3} As this case proceeded, appellant requested discovery from plaintiff-
appellee, State of Ohio, on September 14, 2012, and the state filed its response thereto on
October 14, 2012. Trial was first set for October 31, 2012, but the matter was continued by
joint request of the parties until November 13, 2012. Thereafter, trial was continued upon
the state's motions until January 14, 2013, on which date trial commenced.
       {¶ 4} On the morning of trial, appellant filed a motion to dismiss the charges
contained in the September 2012 indictment for violation of his speedy trial rights. After
hearing oral arguments of the parties, the trial court denied the motion from the bench
and proceeded with voir dire of the jury. During trial, the jury heard testimony from
several witnesses, including appellant, the victim, witnesses from the scene, and
responding law enforcement officers.
       {¶ 5} According to Columbus Police Officer William Pennell, at approximately
1:30 a.m. on August 26, 2012, he was called to the scene of a shooting at 1482 Elaine
Road. Officer Pennell was the first officer to arrive at the scene where he observed a
group of individuals standing around a male lying on the ground in front of the stoop of
apartment B. The victim was nonresponsive and appeared to have multiple gunshot
wounds.     Officer Pennell was informed by witnesses at the scene that after hearing
gunshots, they saw the man that lives in apartment B walking to the rear of the apartment
building with a gun. After other officers arrived, Officer Pennell knocked on the door of
apartment B, whereupon "[t]he door opened, and there was a male on his knees, basically
with his hands up in the air, unintelligible. I don't know what he was saying. And there
was an obvious live – live round of ammunition right inside the front door." (Tr. 77.)
Appellant was arrested and taken to police headquarters. Though not appearing to be
injured, Columbus Police Detective Kevin Jackson testified appellant had what appeared
to be blood on his wrist, fingers, and clothes.
No. 13AP-366                                                                               3


       {¶ 6} Guerrero testified that at the time of this incident he was living at 1482
Elaine Road, Apartment A. Guerrero testified he met appellant when he moved into the
apartment complex about eight or nine months prior to the shooting. According to
Guerrero, he and appellant socially interacted as they would "go out, go to a restaurant,
drink a beer, talk, normal." (Tr. 138.) Prior to the shooting, Guerrero testified he had
been enjoying his day off and "hanging out with some friends" and that as he was walking
back to his apartment, he saw appellant's brother-in-law, Tulo, standing outside. (Tr.
139.) Guerrero testified that he was talking with Tulo when appellant came outside. As to
what happened next, Guerrero testified, "It looked like he was angry, so I asked him
what's up. Then he didn't answer. Then I remember telling him chill out. That's when he
pulled out a gun and started shooting." (Tr. 140.)
       {¶ 7} Guerrero further testified, "I put my hands up. That was my first reaction.
Then he just started shooting. And I fell, and I think when I was on the floor, he just
continued shooting, and I passed out. I tried to like got up and crawl so I could ask for
help. I remember waking up in the hospital." (Tr. 141.)
       {¶ 8} Guerrero denied being in appellant's apartment that night, having any
weapons on his person, threatening appellant or saying anything to appellant other than
"chill out." According to Guerrero, Tulo and appellant's wife witnessed the incident, and
Guerrero remembered appellant's wife screaming and telling appellant to stop. Guerrero
testified, "I think he stopped for a minute. Then he just started shooting again because I
remember when he hit me in the arm, I still got up a little. I think that's when he got the
chance to shoot me in my stomach." (Tr. 142.) Guerrero testified he was shot nine times,
and, though he tried to crawl for help, he passed out. Guerrero did remember appellant's
cousin coming outside and keeping him awake until the ambulance arrived. Guerrero
identified appellant as the shooter in a photo array shown to him by police at the hospital.
       {¶ 9} Anthony Edwin Flores, Jr., testified that, at the time of the shooting, he
lived with his mother at 1484 Elaine Road, Apartment A. At that time, Flores had known
Guerrero for about eight months and had known appellant for "10, 12 years." (Tr. 166.)
According to Flores, he woke to the sound of eight or nine gunshots, which caused him
and his brother-in-law, Jose Burgos, to run outside. Flores was asked what happened
when they went outside, to which Flores responded, "We seen [Guerrero] laying on the
No. 13AP-366                                                                            4


ground, so we ran over to him, and we seen that he was bleeding. And as our way back to
the house, we seen [appellant] come from behind his building. And he cocked the gun
and pointed it at me and my brother-in-law and asked us if we want some." (Tr. 169-70.)
Flores testified he and Burgos then called the police.
       {¶ 10} Burgos testified that, at the time of the incident, he lived in the same
apartment as Flores and had known Guerrero and appellant for approximately four
months. Burgos heard four or five gunshots and looked outside to see Guerrero lying on
the ground. Burgos testified:
              I ran over to him to see if everything was okay. I assumed that
              he might have just been drunk, so as I was rolling him over, he
              was covered in blood. We just spoke for a moment. He told
              me to get help. I ran back to the house to get a phone and
              called the police. Then I ran back to see if he was still okay,
              and by that time my brother-in-law was with me.

              Q. Okay. So that's Anthony?

              A. Yes.

              Q. So your second time out then Anthony's with you?

              A. Yes. Then on the way back after we had called the
              ambulance, we walked back towards the house, our house,
              and [appellant] appeared from between the buildings with a
              firearm and pointed it in our direction and asked us if we
              wanted some too.

(Tr. 184.)
       {¶ 11} Gun shot residue testing of appellant conducted shortly after the shooting
was positive. From appellant's apartment, police recovered a magazine and two boxes of
9mm ammunition. The gun used in the shooting was not found.
       {¶ 12} Inocente Reynoso, also known as Tulo, testified that, on August 26, 2012, he
lived with appellant and appellant's family. According to Tulo, he left the apartment with
some friends at approximately 5:00 p.m. the evening prior to the shooting and when he
returned to the apartment, he saw yellow tape and many police officers. Tulo testified he
did not witness a confrontation between appellant and Guerrero, nor did he have any
information about the shooting or any of the events of August 26, 2012.
No. 13AP-366                                                                             5


       {¶ 13} Appellant testified on his own behalf that during the afternoon of August 25,
2012, he went to a party with a friend. Upon returning home, appellant saw someone
standing in front of his apartment door. Therefore, appellant went around to the side of
the building and entered the apartment through the kitchen door in the back of the
apartment. After he entered the apartment, appellant testified he heard a noise causing
him to walk towards the kitchen. Appellant testified he took a gun from a drawer and
loaded it as he walked towards the living room whereupon he "saw someone standing
there in front of [his] children." (Tr. 345.) Appellant testified:
                When he saw me, he wanted to jump on me like to assault me,
                so I took a step back. I had my gun on me, but I had it
                pointing down. I didn't have the -- I didn't have my finger in
                the trigger yet. When the guy came and jumped on top of me,
                I shot once. I don't know if I hit him or not.

                When I shot him, he wanted to leave the apartment. He had
                one foot inside of the apartment. One foot was on the porch.

                So I thought of my children. I thought he had hurt my
                children because he was in front of them.

                When I shot him the first time, my wife woke up. She yelled
                at me. She was behind me and yelled at me.

                The lights were off. I couldn't see who it was or anything. I
                kept shooting at the guy, thinking of my children, thinking
                that something was wrong with my wife because she had
                yelled at me from behind. I didn't know if she was okay.

                When I turned around after I shot the guy, he was outside
                standing like this. He turned around towards me, so then I
                kept shooting at him. I got close to the door. I stuck out my
                arm, just this part, outside of the door, and I kept shooting,
                thinking of my kids. I thought he had done something to my
                children.

(Tr. 345-46.)
       {¶ 14} According to appellant, he went back into his apartment to talk to his wife
but he could not find her.       Therefore, he left the apartment to go to his cousin's
apartment. After no one answered the door at his cousin's apartment, appellant testified
he saw "two guys standing there." (Tr. 347.) Though unable to recall if he said anything
No. 13AP-366                                                                                6


to them or not, appellant testified, "I didn't point my gun at them like they say I did." (Tr.
347.) Appellant then went back to his apartment. Appellant further testified, "That's
when I got nervous. I didn't know what to do, so then that's when I think I closed the
door. I don't know. So then that's when the police came. They knocked on the door. I
opened the door, raised my hands, and then they took me to the police station." (Tr. 347.)
       {¶ 15} On cross-examination, appellant testified the gun he used did not belong to
him but, rather, belonged to a friend that appellant was permitting to stay at his
apartment. Appellant also testified that he did not know what happened to the gun after
the shooting.
       {¶ 16} The jury returned verdicts of guilty on the attempted murder and felonious
assault charges, as well as the specifications for use of a firearm. A sentencing hearing
was held, and, after merger of the offenses, appellant was sentenced to an aggregate
prison term of 14 years concurrent to the sentence imposed in case No. 12CR-5966. A
judgment reflecting the same was filed on April 10, 2013.
II. ASSIGNMENTS OF ERROR
       {¶ 17} This appeal followed and appellant brings the following assignments of
error for our review:
                [I.] The trial court abused its discretion by overruling
                appellant's motion to dismiss because appellant's sixth
                amendment right to a speedy trial was violated and because
                the state acted without reasonable diligence in commencing
                the action against appellant in a timely manner.

                [II.] Insufficient evidence existed to convict appellant and
                appellant's convictions were against the manifest weight of
                the evidence.

III. DISCUSSION
       A. First Assignment of Error
       {¶ 18} In his first assignment of error, appellant argues the trial court erred in
denying his motion to dismiss for violations of both his statutory and constitutional rights
to a speedy trial.
       {¶ 19} 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
No. 13AP-366                                                                               7


Constitution, Article I, Section 10. State v. Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017,
¶ 32. Ohio's speedy trial statute, R.C. 2945.71, endeavors to comply with constitutional
standards by designating specific timetables for which an accused must be brought to
trial. State v. Ramey, 132 Ohio St.3d 309, 2012-Ohio-2904, ¶ 14.
       {¶ 20} Pursuant to R.C. 2945.71(C)(2), a person "against whom a charge of felony
is pending" must be brought to trial within 270 days after the person's arrest. When
computing the time for purposes of applying R.C. 2945.71(C)(2), each day during which
the accused is held in jail in lieu of bail solely on the pending charge shall be counted as
three days, meaning the accused must be tried within 90 days if he or she is incarcerated.
R.C. 2945.71(E); State v. Carmon, 10th Dist. No. 11AP-818, ¶ 14 (Apr. 10, 2012).
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. Further, the arrest date is not chargeable to
the state in computing speedy trial time. State v. Madden, 10th Dist. No. 04AP-1228,
2005-Ohio-4281, ¶ 28.
       {¶ 21} Here, appellant was arrested on August 26, 2012, and his trial began on
January 14, 2013. Because appellant was incarcerated during this time period, appellant
asserts the triple-count provision of R.C. 2945.71(E) applies so that for speedy trial
purposes, he was required to be brought to trial within 90 days of his arrest. Upon
demonstrating that more than 90 days elapsed before trial, a defendant establishes a
prima facie case for dismissal based on a speedy trial violation. State v. Miller, 10th Dist.
No. 06AP-36, 2006-Ohio-4988, ¶ 9. Once a defendant establishes a prima facie case for
dismissal, the state bears the burden to prove that time was sufficiently tolled and the
speedy trial period extended. Id.; State v. Butcher, 27 Ohio St.3d 28, 31 (1986). Hence,
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. State v. Jackson, 10th Dist. No. 02AP-468, 2003-Ohio-1653, ¶ 32,
citing State v. DePue, 96 Ohio App.3d 513, 516 (4th Dist.1994).
       {¶ 22} In order to meet its burden, the state argues not only that the speedy trial
time was tolled for discovery and continuances, but also that the triple-count provision of
R.C. 2945.71(E) does not apply to the entire time period at issue here. The parties do not
dispute that a portion of the time was tolled for discovery and trial continuances. Nor do
No. 13AP-366                                                                                8


the parties dispute that, at least initially, the triple-count provision of R.C. 2945.71(E)
applied to the non-tolled days between August 26 and November 26, 2012. Rather, the
dispute herein pertains to whether or not the triple-count provision of R.C. 2945.71(E)
applies to the days following November 26, 2012 when appellant was served with the
subsequent indictment.      If the triple-count provision does not apply to said period,
appellant was brought to trial well within the allotted 270 days. If, however, the triple-
count provision does apply, appellant is correct that his statutory speedy trial rights were
violated.
       {¶ 23} As recognized in State v. Mohamed, 10th Dist. No. 08AP-960, 2009-Ohio-
6658, cases involving subsequent indictments can be problematic with respect to the issue
of speedy trial rights. Id. at ¶ 28. In State v. Adams, 43 Ohio St.3d 67 (1989), the
Supreme Court of Ohio determined that, where new and additional charges arise from the
same set of facts as those found in the original charge and the state knew of those facts at
the time of the initial indictment, the time frame within which the new charge is to be
tried is subject to the same statutory limitations period as that which is applied to the
original charge.
       {¶ 24} Subsequently, in State v. Baker, 78 Ohio St.3d 108 (1997), the Supreme
Court established that, where additional charges arose from the same facts as the facts
supporting the original indictment, the subsequent charges are subject to the same speedy
trial constraints as the original charges. But, "in issuing a subsequent indictment, the
state is not subject to the speedy-trial timetable of the initial indictment, when additional
criminal charges arise from facts different from the original charges, or the state did not
know of these facts at the time of the initial indictment." Id. at 110.
       {¶ 25} Thereafter, in State v. Parker, 113 Ohio St.3d 207, 2007-Ohio-1534, the
Supreme Court went on to decide "the holdings of Baker and Adams * * * combined,
stand for the proposition that speedy-trial time is not tolled for the filing of later charges
that arose from the facts of the criminal indictment that led to the first charge." Id. at
¶ 20. Therefore, under Parker, the time would count against the state if the subsequent
indictment arose from the same facts as those that made up the original indictment.
However, Baker does provide for two scenarios in which the state is not held to the speedy
trial time clock of the initial indictment: (1) when additional criminal charges arise from
No. 13AP-366                                                                               9


new facts not present at the time the original charges were filed, or (2) when the state did
not know of these facts at the time of the initial indictment. "The holding in Baker is
disjunctive and specifically sets forth two scenarios, either of which will reset the speedy-
trial timetable for charges arising from a subsequent indictment." Mohamed at ¶ 30,
quoting State v. Thomas, 4th Dist. No. 06CA825, 2007-Ohio-5340, ¶ 17.
       {¶ 26} The Parker court also held, "when multiple charges arise from a criminal
incident and share a common litigation history, pretrial incarceration on the multiple
charges constitutes incarceration on the 'pending charge' for the purposes of the triple-
count provision of the speedy trial statute, R.C. 2945.71(E)." Id. at ¶ 21. The court further
explained, "[c]riminal charges arising out of the same criminal incident and brought
simultaneously will always be deemed to have a 'common litigation history' for the
purposes of establishing incarceration solely on the 'pending charge' within the meaning
of R.C. 2945.71(E), even if they are prosecuted in separate jurisdictions." Id. at ¶ 25.
       {¶ 27} In State v. Freeman, 6th Dist. No. L-09-1086, 2010-Ohio-1357, the Sixth
Appellate District considered an argument similar to that presented by appellant. In that
case, police responded to the report of a burglary in progress where they saw the
defendant's unoccupied and apparently abandoned vehicle smashed against a tree.
Because the vehicle was inoperable, police were required to have the vehicle towed.
During an inventory search of the vehicle, police discovered a suitcase containing
suspected crack cocaine, bootleg DVDs, a towel, and hair clippers. The defendant was
arrested the following day and the suspected drugs were tested.
       {¶ 28} Out of the incident, the defendant was indicted on June 23, 2008 on two
counts of aggravated burglary. On September 10, 2008, the defendant was indicted on
one count of felony drug possession. The two cases were handled together and resulted in
a plea of no contest to possession of crack cocaine.
       {¶ 29} On appeal, the defendant argued that the trial court erred in denying his
motion to dismiss on speedy trial grounds. Specifically, the defendant argued that,
because he remained incarcerated from the time of arrest until the time of the no contest
plea, the triple-count provision of R.C. 2945.71 applied and the speedy trial time expired
well prior to the date of the no contest plea. In rejecting the defendant's position, the
court stated:
No. 13AP-366                                                                              10


              In the instant case, we find that the charges of burglary, which
              arose out of the June 6, 2008 call to police and were based on
              eyewitness testimony, were separate and independent from
              the subsequently-filed drug possession charges that were
              brought after laboratory testing confirmed that the suitcase in
              appellant's car contained crack cocaine. Because the charges
              contained in the two indictments clearly do not share a
              "common litigation history," the triple-count provision in the
              speedy trial statute does not apply in this case pursuant to
              State v. Parker, supra.

              In addition, because the drug possession charges were based
              on additional facts that were revealed through further
              investigation, rather than on facts that were known by the
              state at the time of the initial indictment, State v. Adams is
              likewise inapplicable in this case. State v. Adams, supra.
              Instead, when the drug possession charges were brought, a
              new speedy trial time began to run. See State v. Baker, supra;
              see, also, State v. Mohamed, 10th Dist. No. 08AP-960, 2009
              Ohio 6658.

Id. at ¶ 44-45.
       {¶ 30} The effect of obtaining the results of drug laboratory testing and whether
this constitutes an additional fact to warrant the triggering of a new speedy trial clock was
before this court in Mohamed. In that case, the defendant was arrested on January 7,
2006 after allegedly beating a man and contemporaneously stealing a box containing
suspected khat.    The defendant was charged in municipal court for one count of
aggravated robbery and one count of felonious assault. No charges were filed for any
offense involving drug possession, and the suspected khat was sent for laboratory
analysis. From the events of January 7, the defendant was indicted on January 17, 2006
for one count of aggravated robbery, two counts of robbery, and one count of felonious
assault, but the defendant was not indicted on any drug-related offenses. On April 25,
2006, the defendant entered a plea of guilty to aggravated assault and the remaining
charges were dismissed. The defendant was sentenced on July 20, 2006.
       {¶ 31} Results of the laboratory analysis conducted on the suspected khat were
submitted to the Franklin County Sheriff's Office on June 22, 2007. According to those
results, the substance consisted of 40 bundles of shoots and leaves containing khat and
weighing in excess of 3,188 grams.        The defendant was subsequently indicted on
No. 13AP-366                                                                              11


January 11, 2008 on one count of aggravated drug possession with a major drug offender
specification.
       {¶ 32} The defendant filed a motion to dismiss the 2008 indictment based upon
alleged speedy trial violations. The defendant argued the indictment must be dismissed
because the drug charge arose out of the same set of facts as the 2006 indictment.
Because he had previously been incarcerated and entered a guilty plea with respect to the
2006 indictment, the defendant argued that his statutory speedy trial time had expired.
To the contrary, the state argued the 2008 indictment arose out of facts distinct from
those supporting the charges in the 2006 indictment and of which the state was unaware
at the time of the 2006 indictment.
       {¶ 33} After concluding (1) the defendant's rights had been violated based upon the
"inordinate delay in providing the test results," and (2) the defendant's defense had been
prejudiced by the defendant's previous guilty plea to a "related charge" with a nexus to the
drug charge, the trial court granted the defendant's motion to dismiss. Id. at ¶ 13. On
appeal, this court framed the defendant's argument as, "because the drug possession
offense occurred on the same day as the aggravated robbery and felonious assault
offenses, and because it involved a series of events (keeping in mind that the theft element
involved in the aggravated robbery was the theft of a box containing suspected khat)," the
arrest on the charges in the 2006 indictment started the running of the speedy trial clock
as to the drug offense even though the defendant was not arrested or charged on the drug
offense until 2008. Id. at ¶ 31.
       {¶ 34} In reversing the trial court's judgment, we cited holdings from several Ohio
appellate districts for the proposition that "laboratory results that were not known at the
time of the original indictment constituted 'additional facts,' which warranted the
triggering of a new speedy trial clock." Id. at ¶ 42. "The Second, Fourth, Ninth, Eleventh,
and Twelfth District Courts of Appeals have all held that a subsequent indictment which
was dependent upon a lab analysis that was not available to the state at the time of the
original indictment starts the running of a new speedy trial clock." Id. Additionally, "we
recognized that the length of time the state was in possession of the laboratory results was
immaterial." State v. Brown, 10th Dist. No. 12AP-292, 2012-Ohio-5903, ¶ 11, citing
Mohamed at ¶ 45. Finding that "the results of the lab analysis constituted a new fact that
No. 13AP-366                                                                            12


was not available to the state at the time of the original arrest and/or indictment," the
Mohamed court concluded that the defendant's "speedy trial clock was triggered anew" by
the subsequent indictment. Id. at ¶ 52.
       {¶ 35} Though recognizing this court's decision in Mohamed, appellant asserts it is
distinguishable because this case concerns heroin, which is not an "exotic drug[] such as
khat," as was at issue in Mohamed. (Appellant's Brief, 18.) We reject appellant's position
that our decision in Mohamed was dependent upon the type of substance being tested,
rather than the fact that the substance had undergone testing and the results of which
were not available at the time of the initial indictment.
       {¶ 36} This court followed Mohamed in State v. Scott, 10th Dist. No. 09AP-611,
2009-Ohio-6785, in which the defendant was charged with misdemeanor traffic offenses
and a felony count of possession of cocaine. The cocaine count was dismissed for future
indictment in June 2007, and, after a September 2007 laboratory report confirmed the
substance was cocaine, a felony indictment was filed in March 2008. "Because the lab
results were facts not known to the state at the time of defendant's traffic stop, the time
period at issue is not included in the speedy trial calculations under R.C. 2945.71.
Instead, the speedy trial clock began to run again on the date defendant was re-arrested
on the felony indictment." Id. at ¶ 22.
       {¶ 37} Likewise, in Brown, the defendant was arrested after a traffic stop revealed
that he was in possession of a substance suspected to be crack cocaine. Though being
charged with felony drug possession on June 22, 2010, the charges were dismissed for
future indictment on July 2. After laboratory testing completed on November 11, 2010
confirmed the substance was cocaine, the defendant was indicted on May 31, 2011 with
one count of felony drug possession. Relying on Mohamed and Scott, this court stated:
              Although the arresting officer suspected that the seized
              contraband was cocaine, the subsequent laboratory report
              confirming those suspicions was nevertheless an additional
              fact not known to the state at the time the original charges
              were filed. See State v. Armstrong, 9th Dist. No. 03CA0064-
              M, 2004-Ohio-726 (the state was not subject to the statutory
              speedy-trial timeframe applicable to the original charges
              where the subsequent indictment depended on confirmation
              from a lab report that the white powder seized was cocaine);
              State v. Skinner, 4th Dist. No. 06CA2931, 2007-Ohio-6320;
No. 13AP-366                                                                            13


              State v. Clark, 11th Dist. No. 2001-P-0031, 2004-Ohio-334
              (noting that even though the state may have suspected the
              confiscated substance was cocaine prior to its analysis, the
              speedy-trial time did not apply from the date of the first
              indictment because the lab analysis results were not received
              until after the first indictment). Moreover, while the second
              indictment was filed over six months before the subsequent
              indictment was filed, this period of delay is immaterial for
              speedy-trial purposes. See State v. Dalton, 2nd Dist. No.
              2003 CA 96, 2004-Ohio-3575, ¶ 14; Scott at ¶ 43. Because the
              laboratory results were facts not known to the state at the time
              the original charges were filed, the time period between the
              dismissal of those charges and the subsequent indictment in
              the present case is excluded from the speedy-trial calculation.

Brown at ¶ 13.
       {¶ 38} In the case before us, the charges in the September 2012 indictment arose
out of facts distinct from those supporting the charges in the November 2012 indictment.
While sharing in common the fact that the drugs were discovered on the same day as the
shooting, the record reveals the search warrant executed for appellant's apartment was in
response to the shooting.     While searching the apartment, police discovered what
appeared to be heroin in a container also storing ammunition of the same caliber used in
the shooting. There is no evidence in the record linking the shooting to the heroin, nor
was there any testimony about heroin at appellant's trial.
       {¶ 39} Additionally, the record reflects the laboratory report confirming that the
substance found in appellant's apartment was heroin was obtained in "late November
prior to the filing of that second indictment." (Tr. 14.) This laboratory report confirming
the presence of heroin constitutes an additional fact not known to the state at the time of
the September 2012 indictment such that the state would not be subject to the speedy trial
timetable of the initial indictment. Brown. Further, the two criminal cases at issue
herein, one arising out of the September 2012 indictment and the other arising out of the
November 2012 indictment, do not share a common litigation history.
       {¶ 40} Given the above described authorities, including Freeman and Mohamed,
we conclude the triple-count provision of R.C. 2945.71(E) is not applicable to those days
following November 26, 2012, at which time appellant was served with the second
indictment and no longer being held in jail "solely on the pending charge." See State v.
No. 13AP-366                                                                               14


Matland, 7th Dist. No. 09MA-115, 2010-Ohio-6585 (upon introduction of a new domestic
violence charge that was not from the same transaction that precipitated the initial
charges, the defendant was no longer being held solely on the pending charge such that
the triple-count provision of R.C. 2945.71 was inapplicable); State v. Huffman, 8th Dist.
No. 92477, 2010-Ohio-5113 (days following arrest for probation violation while awaiting
trial in separate case not calculated under triple-count provision of R.C. 2945.71).
       {¶ 41} Because the triple-count provision of R.C. 2945.71 did not apply to the days
following November 26, 2012, appellant's trial occurred well within the time required by
R.C. 2945.71(C). Accordingly, we find appellant's statutory speedy trial challenge to be
without merit.
       {¶ 42} Appellant also claims he was deprived of his constitutional right to a speedy
trial. In Barker v. Wingo, 407 U.S. 514, 530 (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 criminal defendant is more to blame for the delay, (3) whether in
due course, the defendant asserted his right to a speedy trial, and (4) whether he suffered
prejudice as a result of the delay.      These factors are balanced in a totality of the
circumstances setting with no one factor controlling. Id. The Supreme Court of Ohio has
also adopted this test to determine if an individual's constitutional speedy trial rights have
been violated. State v. Selvage, 80 Ohio St.3d 465, 467 (1997).
       {¶ 43} The first of these factors, the length of the delay, "is to some extent a
triggering mechanism. Until there is some delay which is presumptively prejudicial, there
is no necessity for inquiry into the other factors that go into the balance." Barker at 530;
Doggett v. United States, 505 U.S. 647, 651 (1992). Therefore, the Barker analysis is only
triggered once a "presumptively prejudicial" delay is shown. State v. Miller, 10th Dist No.
04AP-285, 2005-Ohio-518, ¶ 11, citing Doggett at 651-52.                Generally, delay is
presumptively prejudicial as it approaches one year. State v. Glass, 10th Dist. No. 10AP-
558, 2011-Ohio-6287, ¶ 20, citing Miller at ¶ 12.
       {¶ 44} From the date of arrest, this case was pending for 141 days and, during that
time, 43 days were tolled for discovery and a continuance jointly requested by the parties.
We do not find the delay of 98 days in this case to be presumptively prejudicial. This
No. 13AP-366                                                                             15


court and other Ohio appellate districts have found delays longer than 98 days not to be
presumptively prejudicial. State v. Billups, 10th Dist. No. 91AP-68 (Aug. 15, 1991) (delay
of 148 days not presumptively prejudicial); State v. Harrel, 5th Dist. No. 98CAA06029
(Dec. 29, 1998) (delay of four to five months not presumptively prejudicial); State v.
Webb, 4th Dist. No. 01CA32, 2002-Ohio-3552, ¶ 26 (delay of 186 days, not presumptively
prejudicial); State v. Pinson, 4th Dist. No. 00CA2713 (Mar. 16, 2001) (delay of six and
one-half months not presumptively prejudicial); State v. Carter, 9th Dist. No.
97CA006703 (Apr. 1, 1998) (delay of nine months not presumptively prejudicial).
       {¶ 45} Because appellant has not made the threshold showing that there was a
presumptively prejudicial delay in this case, we need not weigh the remaining Barker
factors and conclude appellant's constitutional speedy trial rights were not violated.
       {¶ 46} Finding no violation of appellant's statutory or constitutional speedy trial
rights, we overrule appellant's first assignment of error.
       B. Second Assignment of Error
       {¶ 47} In his second assignment of error, appellant challenges both the sufficiency
and weight of the evidence supporting his convictions. Sufficiency of the evidence is a
legal standard that tests whether the evidence is legally adequate to support a verdict.
State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Whether the evidence is legally
sufficient to support a verdict is a question of law, not fact. Id. In determining whether
the evidence is legally sufficient to support a conviction, " '[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. Robinson, 124 Ohio St.3d 76, 2009-Ohio-5937, ¶ 34, quoting
State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. A verdict will not
be disturbed unless, after viewing the evidence in a light most favorable to the
prosecution, it is apparent that reasonable minds could not reach the conclusion reached
by the trier of fact. State v. Treesh, 90 Ohio St.3d 460, 484 (2001).
       {¶ 48} In a sufficiency of the evidence inquiry, appellate courts do not assess
whether the prosecution's evidence is to be believed, but whether, if believed, the evidence
supports the conviction. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79-
80 (evaluation of witness credibility not proper on review for sufficiency of evidence);
No. 13AP-366                                                                               16


State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that "in a
sufficiency of the evidence review, an appellate court does not engage in a determination
of witness credibility; rather, it essentially assumes the state's witnesses testified
truthfully and determines if that testimony satisfies each element of the crime").
       {¶ 49} In contrast to assessing the sufficiency of the evidence, when presented with
a manifest weight challenge, an appellate court may not merely substitute its view for that
of the trier of fact, but must 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 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.   Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175 (1st
Dist.1983). An appellate court should reserve reversal of a conviction as being against the
manifest weight of the evidence for only the most " 'exceptional case in which the evidence
weighs heavily against the conviction.' " Id., quoting Martin.
       {¶ 50} In conducting a manifest weight of the evidence review, we may consider
the credibility of the witnesses. State v. Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-
4953, ¶ 6. However, in conducting such review, "we are guided by the presumption that
the jury, or the trial court in a bench trial, 'is best able to view the witnesses and observe
their demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.' " Id., quoting Seasons Coal Co. v. Cleveland, 10
Ohio St.3d 77, 80 (1984).
       {¶ 51} Under this assigned error, appellant asserts that, "[b]ecause Appellant was
in his own home, and because he only has the burden of proving self-defense or defense of
another by the preponderance of the evidence, Appellant respectfully requests that this
court sustain his second assignment of error." (Appellant's Brief, 37-38.) The basis for
this assertion is that in appellant's view, he was entitled to the presumption of self-defense
found in R.C. 2901.05(B), sometimes referred to as the "Castle Doctrine." State v. Clellan,
10th Dist. No. 09AP-1043, 2010-Ohio-3841, ¶ 20.
       {¶ 52} Defendant's challenge to the sufficiency of the evidence insofar as it invokes
self-defense and the Castle Doctrine is inappropriate. " 'Under Ohio law, self-defense is
an affirmative defense.' " State v. Calderon, 10th Dist. No. 05AP-1151, 2007-Ohio-377,
No. 13AP-366                                                                               17


¶ 30, quoting State v. Williford, 49 Ohio St.3d 247, 249 (1990), citing State v. Martin, 21
Ohio St.3d 91 (1986), affirmed, 480 U.S. 228 (1987), rehearing denied, 481 U.S. 1024.
The "due process 'sufficient evidence' guarantee does not implicate affirmative defenses,
because proof supportive of an affirmative defense cannot detract from proof beyond a
reasonable doubt that the accused had committed the requisite elements of the crime."
State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 37, quoting Caldwell v. Russell,
181 F.3d 731, 740 (6th Cir.1999).       Appellant's self-defense contentions are therefore
addressed in our analysis of the manifest weight of the evidence.
       {¶ 53} A defendant has the burden to prove self-defense by a preponderance of the
evidence. R.C. 2901.05(A); State v. Smith, 10th Dist. No. 04AP-189, 2004-Ohio-6608,
¶ 16. To establish self-defense, a defendant must prove (1) he was not at fault in creating
the situation giving rise to the affray, (2) he had a bona fide belief that he was in imminent
danger of death or great bodily harm and his only means of escape from such danger was
the use of such force, and (3) he must not have violated any duty to retreat or avoid the
danger. State v. Robbins, 58 Ohio St.2d 74 (1979), paragraph two of the syllabus. A
defendant may only use as much force as is reasonably necessary to repel the attack.
State v. Harrison, 10th Dist. No. 06AP-827, 2007-Ohio-2872, ¶ 25, citing State v.
Jackson, 22 Ohio St.3d 281 (1986), cert. denied, 480 U.S. 917 (1987). The elements of
self-defense are cumulative, so "[i]f the defendant fails to prove any one of these elements
* * * he has failed to demonstrate that he acted in self-defense." (Emphasis sic.) Jackson
at 284.
       {¶ 54} Defendant argues the jury lost its way because the prosecution did not rebut
the presumption of self-defense set forth in R.C. 2901.05(B). Pursuant to the provisions
of R.C. 2901.05(B), the court instructed the jury as follows:
                The defendant is presumed to have acted in self-defense or in
                defense of another when using defensive force that was likely
                to cause death or great bodily harm to Santos Guerrero if the
                defendant proved by the greater weight of the evidence that
                Santos Guerrero (a) was unlawfully and without the privilege
                to do so was in the process of entering the residence occupied
                by the defendant, or (b) unlawfully and without the privilege
                to do so had entered the residence occupied by the defendant.

(Tr. 501-02.)
No. 13AP-366                                                                                18


        {¶ 55} In support of his position that he is entitled to the presumption of self-
defense of R.C. 2901.05, appellant relies upon the version of events he described to the
jury. Appellant testified that when he arrived at home, he saw a man inside of the
apartment and standing in front of his children. According to appellant, the man was
looking as if he wanted to jump on and assault appellant. Fearing for his safety and that
of his family, appellant testified he began shooting.
        {¶ 56} In contrast, Guerrero testified the shooting did not occur inside of
appellant's apartment but, rather, occurred outside the apartment as Guerrero was talking
with Tulo. According to Guerrero, appellant appeared angry when he came outside and
after Guerrero said, "what's up" and to "chill out," appellant began shooting. Further,
Guerrero denied entering appellant's apartment that night, fighting with appellant,
threatening appellant, or saying anything to appellant other than "what's up" and to "chill
out."
        {¶ 57} Faced with such conflicting evidence, the jury had the responsibility to
determine witness credibility. As trier of fact, the jury was free to believe or disbelieve all
or any of the testimony presented. State v. Matthews, 10th Dist. No. 11AP-532, 2012-
Ohio-1154, ¶ 46, citing State v. Jackson, 10th Dist. No. 01AP-973, 2002-Ohio-1257. In
this case, the jury could have rejected appellant's assertion that he had a bona fide belief
that he was in imminent danger or the jury could have rejected appellant's assertion that
Guerrero entered or was in the process of entering appellant's residence at the time of the
shooting. A conviction is not against the manifest weight of the evidence simply because
the jury believed the prosecution testimony. State v. Anderson, 10th Dist. No. 10AP-302,
2010-Ohio-5561, ¶ 19. Because the jury is in the best position to determine the credibility
of each witness by taking into account inconsistencies, as well as witnesses' manner and
demeanor, we cannot conclude this record presents a scenario where the jury clearly lost
its way.
        {¶ 58} Because the jury reasonably could have believed Guerrero's testimony over
that provided by appellant, the jury's decision to reject appellant's claim that he was
entitled to the presumption of self-defense contained in R.C. 2901.05(B) was not against
the manifest weight of the evidence.         Accordingly, we overrule appellant's second
assignment of error.
No. 13AP-366                                                                         19


IV. CONCLUSION
      {¶ 59} Having overruled appellant's two assignments of error, we hereby affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                   Judgment affirmed.

                       DORRIAN and McCORMAC, JJ., concur.

            McCORMAC, J., retired, formerly of the Tenth Appellate
            District, assigned to active duty under authority of the Ohio
            Constitution, Article IV, Section 6(C).

                      _____________________________
