[Cite as State v. Hayes, 2012-Ohio-2500.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97289




                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                      GERALD HAYES
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-542601

        BEFORE: Rocco, J., Stewart, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: June 7, 2012

                                               -i-
ATTORNEY FOR APPELLANT

David P. Kraus
19333 Van Aken Blvd.
Suite 112
Shaker Heights, Ohio 44122

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Maxwell M. Martin
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:

        {¶1} Defendant-appellant Gerald Hayes appeals from his convictions for burglary,

possession of marijuana, and tampering with evidence.

        {¶2} Hayes presents two assignments of error. He argues that the state failed to

bring him to trial in a timely manner, and that his convictions are not supported by the

manifest weight of the evidence.

        {¶3} After a review of the record, this court finds that the state complied with R.C.

2945.71 and that the manifest weight of the evidence supports Hayes’s convictions.

Hayes’s convictions, consequently, are affirmed.

        {¶4} Hayes’s convictions result from an incident that occurred on the afternoon of

September 25, 2010. The state’s witnesses described the incident as follows.

        {¶5} Cecil Fluker worked as the “assistant property manager” for an apartment

complex located in East Cleveland, Ohio. He had been napping when his cell phone

rang.    One of the tenants, Jermika Hudson, called to notify him that her sister’s

apartment, which was across the hall from Hudson’s, had been invaded.

        {¶6} Fluker hurried over to that building to investigate. He stepped inside long

enough to observe through the inner glass door that tenant Daysjantia Williams’s

apartment door was open. Fluker also saw someone’s head “peek” from Williams’s

door. At that, Fluker returned outside to watch; he asked a nearby youngster to seek

shelter inside and to call the police.
       {¶7} Fluker saw several men run out of the building. He recognized some of their

faces, having seen them at the apartment of another tenant, viz., Denzel Crowell. Fluker

followed the men as they ran to another building in the apartment complex; Crowell lived

in that building. Before entering the building, one of the men raised a gun at Fluker.

       {¶8} Fluker was still in place when the police arrived moments later. He pointed

out Williams’s apartment, showed them the building that he had seen the men enter, and

informed them of Crowell’s apartment number.

       {¶9} East Cleveland police officer John Donitzen and his partner knocked at

Crowell’s apartment door.      Donitzen could hear movement inside before Crowell

admitted the officers.

       {¶10} Donitzen observed four men with Crowell in the small apartment. They

were later identified as Keith Dickson, Delmar Dale, Gregory Crayton, and Hayes. Upon

seeing the officers, Dickson simply prostrated himself on the floor. Dale emerged from

the bathroom, where a gun subsequently was found hidden inside the toilet tank.

Crayton and Hayes were in a small bedroom; Hayes was on the floor when Donitzen

entered. Hayes had his hand under the dresser.

       {¶11} After all the men were secured, the officers conducted a “cold stand” and

Fluker identified Hayes as the man who had pointed a gun at him. During the ensuing

investigation of the incident, Dickson and Dale both acknowledged they had taken part in

invading Williams’s apartment; they identified Hayes as their companion.
         {¶12} According to Dickson, Crowell had indicated Williams kept a lot of

marijuana in her apartment. Crayton and Dale both admitted they smoked marijuana

often.    Dickson and Dale each testified that Hayes went with them to Williams’s

apartment and that they all went inside after Dickson “kicked in” the door. On the night

of the incident, under the dresser where Donitzen had seen Hayes reaching his arm,

Donitzen found a “sandwich bag containing multiple smaller bags of marijuana inside of

it.”

         {¶13} Hayes subsequently was indicted along with his four codefendants on

thirteen counts. Pertinent to this appeal, Hayes was charged with aggravated burglary,

burglary, carrying a concealed weapon, possession of marijuana, having a weapon while

under disability, and tampering with evidence. The burglary counts contained notices of

prior conviction (“NPCs”) and repeat violent offender specifications (“RVOs”).

         {¶14} The record reflects that although counsel was assigned to represent Hayes at

Hayes’s September 30, 2010 initial appearance before the trial court, counsel found it

necessary to file a motion to withdraw from the case on October 26, 2010. The trial

court granted the motion and appointed new counsel for Hayes on November 3, 2010.

Hayes’s trial counsel thereafter filed motions for discovery; he also participated in

numerous pretrial hearings.

         {¶15} The court originally set March 1, 2011 as the date for Hayes’s trial, but the

case was continued to April 12, 2011. On that date, the defense filed a motion to

continue trial until May 4, 2011. The case, however, could not go forward because the
court was unavailable and the next available date for the attorneys was not until June 21,

2011.

        {¶16} On June 1, 2011, proceeding pro se, Hayes filed a motion to dismiss his case

pursuant to R.C. 2945.71 for failure to comply with his right to a speedy trial. The court

addressed Hayes’s motion on June 21, 2011 when his case was called for trial.

        {¶17} At that time, Hayes’s attorney conceded that his client had been incarcerated

since his arrest based upon a “probation hold” in addition to the instant case. Defense

counsel also noted that the case would need a further continuance because Hayes did not

as of the trial date “have any conventional clothing.” In addition, the prosecutor stated

on the record that Hayes was under indictment in another case, viz., case number

CR-538572. Based upon the foregoing facts, Hayes’s trial counsel agreed with the

court’s statement that the time for trial had been tolled “at least until June 28th.”

Hayes’s trial commenced on that date.

        {¶18} After Hayes executed a jury waiver with respect to the NPCs and RVOs

attached to his indictment, his case proceeded to a jury trial on the pertinent charges.

The jury subsequently found Hayes guilty of burglary, possession of marijuana, and

tampering with evidence. The trial court also found Hayes guilty of the NPCs and

RVOs. The court ultimately sentenced Hayes to a total prison term of five years for his

convictions.

        {¶19} Hayes presents two assignments of error in this appeal.
       “I. The trial court erred by not commencing trial in a timely fashion in

violation of R.C. 2945.71[,] the Sixth and Fourteenth Amendments to the U.S.

Constitution[,] and Article I, Section 10 of the Ohio Constitution.

       “II.    Defendant’s convictions for burglary, possession of drugs and

tampering with evidence were against the manifest weight of the evidence.”

       {¶20} Hayes argues in his first assignment of error that the lower court should have

granted his motion to dismiss this case for failure to comply with his constitutional right

to a speedy trial because his trial did not take place within the statutory time period. The

record does not support his argument.

       {¶21} Hayes was incarcerated on more than the charges in this case, therefore, the

pertinent portion of R.C. 2945.71 states:

               (C) A person against whom a charge of felony is pending:
                ***
               (2) Shall be brought to trial within two hundred seventy days after
       his arrest.

       {¶22} Because the two-hundred-seventy-day statutory period begins to run from the

date of arrest, Hayes’s time for trial commenced on September 25, 2010. However, the

time period specified in R.C. 2945.71 can be extended pursuant to R.C. 2945.72, which

provides in relevant part that “[t]he time within which an accused must be brought to trial,

* * * may be extended * * * by * * * [a]ny period of delay necessitated by reason of a * *

* motion, proceeding, or action made or instituted by the accused[.]”

       {¶23} According to the docket of this case, Hayes’s trial counsel requested several

continuances for the purpose of obtaining discovery.        Furthermore, defense counsel
conceded that Hayes’s trial commenced within the statutory time limits. Any doubt as to

the effectiveness of defense counsel’s waiver of speedy trial rights was settled by State v.

McBreen, 54 Ohio St.2d 315, 376 N.E.2d 593 (1978). The syllabus of McBreen states:

              A defendant’s right to be brought to trial within the time limits
       expressed in R.C. 2945.71 may be waived by his counsel for reasons of trial
       preparation and the defendant is bound by the waiver even though the
       waiver is executed without his consent.

       {¶24} This court is cognizant that in State v. O’Brien, 34 Ohio St.3d 7, 516 N.E.2d

218 (1987), the Ohio Supreme Court noted that statutory and constitutional speedy trial

provisions are coextensive, but that the constitutional guarantees may be broader than

statutory provisions in some circumstances. Hence, a defendant’s Sixth Amendment

rights to a speedy trial can be violated even though the state has complied with the

statutory provisions implementing that right. Id.

       {¶25} A balancing test for resolving speedy trial issues, therefore, is applied.

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Pursuant to this

test, four factors are considered, viz., the length of delay, the reason for the delay, the

defendant’s assertion of his right, and prejudice to the defendant. Id. at 530. Applying

that balancing test to Hayes’s case, no violation of his constitutional right to a speedy trial

occurred.

       {¶26} Although Hayes asserted his right to a speedy trial in his pro se motion, he

waived the right through his defense counsel on other occasions. State v. Clayton, 8th

Dist. No. 64036, 1994 WL 24287 (Jan. 27, 1994). Moreover, some of the delay can be

attributed to Hayes’s own failure to have appropriate clothing on the date of trial. The
record also does not reflect Hayes suffered any prejudice caused by the delay. State v.

Logan, 71 Ohio App.3d 292, 593 N.E.2d 395 (10th Dist. 1991).

       {¶27} Based upon the foregoing analysis, Hayes’s first assignment of error is

overruled.

       {¶28} In his second assignment of error, Hayes argues that the manifest weight of

the evidence does not support his convictions. He contends that the state’s case against

him was based mainly upon the testimony of unreliable witnesses, and their testimony

was not worthy of belief. This court disagrees.

       {¶29} In determining whether a conviction is against the manifest weight of the

evidence, a reviewing court must examine the entire record, weigh the evidence presented

and all reasonable inferences therefrom, 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. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983). A reviewing

court must, however, allow the jury appropriate discretion with respect to matters relating

to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 10

Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).

       {¶30} During the trial of this case, the jury heard testimony from several witnesses,

including Fluker, police officers, and forensic experts. The jury also heard testimony
from three of Hayes’s four codefendants and from Williams. Each of the witnesses had

his or her own reasons to testify.

       {¶31} Nevertheless, the testimony was consistent as to all the essential facts

surrounding the incident, including Hayes’s participation in the apartment invasion and

his proximity to hidden marijuana. This court cannot find that the jury lost its way in

evaluating the evidence presented in this case. State v. Williams, 3d Dist. No. 9-07-61,

2008-Ohio-3887.

       {¶32} Accordingly, Hayes’s second assignment of error also is overruled.

       {¶33} Hayes’s convictions are affirmed.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s convictions 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.



___________________________________
KENNETH A. ROCCO, JUDGE

MELODY J. STEWART, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
