[Cite as State v. Ferguson,

.]

IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 08CA0050

vs. : T.C. CASE NO. 07CR1011

JAMES FERGUSON : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :

. . . . . . . . .

O P I N I O N

Rendered on the 26th day of August, 2011.

. . . . . . . . .

David W. Phillips, Atty. Reg. No. 0019966, Clark County Special Prosecutor for the State of Ohio, Union County Justice Center, 221 West Fifth Street, Marysville, OH 43040 Attorney for Plaintiff-Appellee

David R. Miles, Atty. Reg. No. 0013841, 125 West Main Street, Suite 201, Fairborn, OH 45324 Attorney for Defendant-Appellant

. . . . . . . . .

GRADY, J.:

{¶ 1} Defendant, James Ferguson, appeals from his conviction

and sentence for child endangering, permitting child abuse, and

felonious assault.

{¶ 2} Defendant and his wife, Vonda Ferguson, adopted six 2

children: Sherita, Jermaine, Joseph, Julius, Valnita, and Vivian.

The family lived in Clark County from 2000 until 2004, when they

moved to Union County. In November 2004, Vonda Ferguson, while

talking on the phone with a Union County social worker, threatened

to stab one of the children. An investigation ensued, following

which the children were removed from the Ferguson home. The State

sought permanent custody of the children. In 2005, the Fergusons

relinquished custody of the children.

{¶ 3} In August 2006, Defendant James Ferguson was indicted

in Union County on thirty charges relating to the abuse of his

children. That case was dismissed by the State in March 2007.

On October 16, 2007, Defendant was indicted by the Clark County

grand jury on the same charges: twenty counts of endangering

children, R.C. 2919.22(B), five counts of permitting child abuse,

R.C. 2903.15(A), and five counts of felonious assault, R.C.

2903.11(A)(1). The matter was tried before a jury in April 2008,

and Defendant was found guilty of seventeen counts of endangering

children, five counts of permitting child abuse, and three counts

of felonious assault. The trial court sentenced Defendant to

prison terms totaling sixty-five years.

{¶ 4} Defendant timely appealed to this court from his

conviction and sentence.

Facts 3

{¶ 5} The children testified at trial regarding the abuse they

suffered. Joseph testified that Defendant beat him with a “Honda

belt,” a white belt Defendant wore to work at the Honda

manufacturing plant in Marysville, an extension cord, and a

duct-taped wooden paddle. Defendant also held Joseph under water,

pushed him off a roof, starved him for days at a time, and duct-taped

him to a chair. The abuse began when Joseph was seven or eight

and the family lived in Clark County. Defendant would beat Joseph

for five to ten minutes, four to five times per week. Defendant

held the belt in both hands and hit Joseph with a lot of force.

Joseph bled a lot and has scars on his buttocks, legs, and back.

If Joseph cried out, socks would be stuffed in his mouth to silence

him.

{¶ 6} Defendant was aware that his wife, Vonda Ferguson, had

stabbed Joseph with a pen and burned him with an iron. Defendant

threatened to kill Joseph if he told anyone about the abuse. Joseph

had to wear soiled underwear on his head and eat the excrement

if he soiled himself. He also had to stand against a wall for

prolonged periods of time, even overnight.

{¶ 7} Valnita testified about being beaten with a duct-taped

stick and a white Honda belt. She further testified that all of

the children, except the baby Vivian, were beaten with the belt.

During the beatings by Defendant, Vonda Ferguson would laugh. 4

Defendant kicked the children with his steel-toed work boots, and

struck Valnita with a hammer, smashing one of her fingers. Valnita

had welts, bruises, scars, and scabs on her back. Valnita was

responsible for caring for Vivian. If Vivian woke up Defendant

or his wife during the night, Valnita would be required to stand

against a wall overnight, or Defendant would beat her. Valnita

testified about being burned by a curling iron.

{¶ 8} Julius testified that he was beaten and hit a lot for

minor things. He was struck with a belt or a stick, and had marks

on the back of his thighs and buttocks.

{¶ 9} Sherita testified that she was duct-taped to a table and

beaten with a bat, a belt, and a stick by Defendant. She was beaten

so hard that she bled through her panties and could hardly walk.

She has scars on her legs, buttocks, and back. Sherita was forced

to put soiled garments in her mouth, and Vonda Ferguson struck

her toes and fingers with a hammer hard enough that her nails would

turn black and fall off. The children had to stand against a wall

for hours. Sherita would steal food because she was hungry.

{¶ 10} Jermaine testified that the atmosphere in the Ferguson

home was warlike, and a lot of violence was inflicted on the

children. Jermaine was beaten on his bare buttocks with a

duct-taped stick for up to ten minutes at a time, and as a result

he has scars. Defendant kicked and punched Jermaine, and forced 5

him to stand against a wall, sometimes overnight. Jermaine lied

for his parents because things would get worse for the other

children if he told about the abuse. Jermaine indicated that he

and the other children were beaten with the Honda belt and

duct-taped. Jermaine did the laundry for the family and he

testified that everybody bled. He found scabs and blood in the

children’s underwear.

{¶ 11} Examinations of Jermaine, Valnita, and Joseph by Dr.

Applegate and Dr. Scribano revealed scarring on the children’s

thighs, backs, and buttocks that was consistent with physical

abuse. Burn marks were observed on Valnita and Joseph, and a stab

wound was found on Joseph.

{¶ 12} All of the abused children, except Sherita, were examined

by a psychologist, Dr. Jolie Brahms. Jermaine was very damaged

by the abuse, Julius was suicidal as a result of severe depression,

and Valnita indicated that she needed counseling to adapt to a

family. Dr. Brahms found that “there was no Joseph.”

{¶ 13} Early in the investigation of the Fergusons’ treatment

of their children, Defendant was interviewed by Union County

Sheriff’s Detective Jon Kleiber. The interview took place at

Defendant’s place of employment, Honda of America, and Defendant

was not in custody. Defendant admitted whipping the children with

his white Honda belt until they bled. Defendant also admitted 6

hitting the children with a duct-taped stick, which left welts

and bruises on them. Defendant indicated that beating one or more

of the children was a daily activity. Defendant admitted that

the children were beaten so frequently that their skin did not

have time to heal between the beatings. Defendant hung some of

the children from a second story bannister to make them afraid,

and he admitted kicking Jermaine in the chest or stomach. He put

soiled washrags in Sherita’s and Jermaine’s mouths. Defendant

admitted that his wife, Vonda, ordered him to beat the children

until they bled, and he would then continue to beat the children.

Vonda Ferguson would use make-up to cover the children’s scars

and injuries so she did not get caught by the local authorities,

teachers, or school officials.

{¶ 14} Defendant’s defense at trial was that the children’s

allegations of abuse were grossly exaggerated and a contrived

attempt to escape a disciplined home, and that the allegations

were induced by leading questions asked by investigators.

FIRST ASSIGNMENT OF ERROR

{¶ 15} “THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTION

TO AMEND FIFTEEN CHILD ENDANGERING COUNTS OF THE INDICTMENT DURING

THE TRIAL.”

{¶ 16} During the trial the Stated filed a motion to amend

fifteen of the twenty counts of endangering children to include 7

the culpable mental state of recklessness, which was inadvertently

omitted from the indictment. Defendant objected, and requested

a continuance of the trial and to discharge the jury pursuant to

Crim.R. 7(D). The trial court permitted the amendment and denied

Defendant’s request for a continuance or discharge of the jury.

Relying upon State v. Colon,

,

(Colon I), Defendant now argues that the failure to include an

essential element of the child endangering charges, the culpable

mental state of recklessness, is a fatal defect that cannot be

cured by amendment of the indictment, and that the trial court

erred in permitting the State to amend the indictment to add the

omitted culpable mental state.

{¶ 17} Crim.R. 7(D) provides that the court may at any time

before, during, or after trial amend the indictment with respect

to any defect or omission, provided no change is made in the name

or identity of the crime charged. In State v. O’Brien (1987),

, the Ohio Supreme Court held that the amendment

of the indictment to include the culpable mental state of

recklessness did not change the name or identity of the crime of

endangering children, nor did it change the penalty or the degree

of the offense. Accordingly, the amendment made in the present

case was proper per Crim.R. 7(D).

.

{¶ 18} In State v. Hamilton, Montgomery App. No. 22895, 8

, we concluded that Colon I implictly overruled

O’Brien. Id., at ¶17. After our decision in Hamilton, and the

Supreme Court’s decision in Colon I, the Ohio Supreme Court on

March 25, 2010, decided State v. Pepka,

,

, wherein it held that an amendment to an indictment

for endangering children that added language that the victim

suffered serious physical harm was proper per Crim.R. 7(D). The

Supreme Court cited O’Brien with approval, stating that as long

as the State complies with Crim.R. 7(D), it may cure a defective

indictment by amendment, even if the original indictment omits

an essential element of the offense with which Defendant is charged.

Pepka, at ¶15.

{¶ 19} In light of the Supreme Court’s approval of O’Brien in

Pepka, a decision released after Colon I and II, and our decision

in Hamilton, we conclude that the holding in O’Brien regarding

the amendment of indictments remains good law. See also State

v. Rice, Hamilton App. No. C-080444,

. Under O’Brien,

an amendment to include an omitted essential element of the offense

is proper if the name or the identity of the crime is not changed,

and the accused has not been misled or prejudiced by the omission

of the element from the indictment. O’Brien, at paragraph two

of the syllabus. That is the case here.

{¶ 20} Defendant states in conclusory fashion that he was misled 9

and prejudiced by the permitted amendment. Defendant, however,

offers no explanation of how or why he was prejudiced. He does

not claim that he would have defended the case any differently

or otherwise have altered his trial strategy. Neither does

Defendant claim he was surprised. In that regard, we note that

the first count of child endangerment pertaining to each child,

counts one, five, nine, thirteen and seventeen, did in fact include

the culpable mental state of recklessness. That culpable mental

state was inadvertently omitted from the remaining counts of child

endangering pertaining to each child. Defendant had adequate

prior notice and was fairly informed about the elements of the

charge against which he must defend, which is the purpose of an

indictment. Pepka. The amendment cured any error resulting from

the further omissions.

{¶ 21} Because this record does not demonstrate that Defendant

was misled or prejudiced by the omission of the mens rea element

from some, but not all, of the child endangering counts, or by

the permitted amendment, the amendment to include that omitted

essential element was proper, and Defendant was not entitled to

a continuance or discharge of the jury. Pepka; O’Brien; Crim.R.

7(D).

{¶ 22} Defendant’s first assignment of error is overruled. 10

SECOND ASSIGNMENT OF ERROR

{¶ 23} “APPELLANT’S FIVE CONVICTIONS FOR PERMITTING CHILD ABUSE

SHALL BE REVERSED BECAUSE THE TRIAL COURT LACKED JURISDICTION.”

{¶ 24} Defendant argues that because the indictment failed to

include a culpable mental state for the permitting child abuse

charges, it failed to charge an offense and accordingly the trial

court lacked subject matter jurisdiction over those offenses.

Therefore, Defendant’s convictions for those offenses must be

reversed. We disagree.

{¶ 25} R.C. 2903.15(A) sets forth the offense of permitting

child abuse as follows:

{¶ 26} “No parent, guardian, custodian, or person having

custody of a child under eighteen years of age or of a mentally

or physically handicapped child under twenty-one years of age shall

cause serious physical harm to the child, or the death of the child,

as a proximate result of permitting the child to be abused, to

be tortured, to be administered corporal punishment or other

physical disciplinary measure, or to be physically restrained in

a cruel manner or for a prolonged period.”

{¶ 27} R.C. 2903.15(A) is silent as to any culpable mental

state. Furthermore, that provision does not plainly indicate a

purpose to impose strict liability. In that circumstance,

recklessness is the default culpable mental state that applies. 11

R.C. 2901.21(B). We note that the Ohio Jury Instruction Committee

states that recklessness is the appropriate culpable mental state

that applies to permitting child abuse as a result of the

application of R.C. 2901.21(B). See Ohio Jury Instructions, §CR

503.15, and the Comment thereto. We agree. See also State v.

McGee (1997),

, interpreting child endangering

in violation of R.C. 2919.22(A).

{¶ 28} Even though the indictment omitted the mens rea element

of recklessness from the permitting child abuse charges, this is

not the rare case where that error permeated the entire trial and

resulted in multiple errors, resulting in a structural error,

rather than a plain error, analysis. State v. Colon,

,

(Colon II). The prosecutor argued to

the jury that recklessness was required for the permitting child

abuse charges. Even more importantly, the trial court instructed

the jury on the culpable mental state of recklessness as it applies

to permitting child abuse in accordance with Ohio Jury Instructions

§CR 503.15. With respect to each count of permitting child abuse,

the court instructed the jury that they must find that Defendant

recklessly permitted the abuse. The omission of the mens rea

element from an indictment does not require reversal where, as

here, the trial court properly instructs the jury. State v.

Lester,

,

; Colon II. 12

We cannot say that but for the failure of the indictment to specify

that Defendant acted recklessly in permitting his children to be

abused, he would have been acquitted of those charges. No plain

error is demonstrated. State v. Long (1978),

.

{¶ 29} Defendant’s second assignment of error is overruled.

THIRD ASSIGNMENT OF ERROR

{¶ 30} “APPELLANT’S ENTIRE INDICTMENT IS VOID DUE TO THE

IMPROPER APPOINTMENT OF A SPECIAL PROSECUTOR.”

{¶ 31} The prosecution of this case in Clark County was

conducted by Union County Prosecuting Attorney David Phillips,

several of his assistant prosecuting attorneys, and assistant Ohio

Attorney General Chris Wagner. Defendant argues that his

indictment is void due to the improper appointment of a special

prosecutor. Defendant cites no authority to support that claim.

{¶ 32} At the outset we note that Defendant’s claim was not

raised in the trial court below. Accordingly, Defendant has waived

all but plain error. Plain error does not exist unless it can

be said that but for the error, the outcome of the trial would

clearly have been different. State v.

{¶ 33} Objections based upon defects in the institution of the

prosecution, such as this, must be raised by motion prior to trial

or they are waived. Crim.R. 12(C)(1), (H). In any event, the

court of common pleas has broad discretion to appoint counsel to 13

assist the prosecuting attorney in a pending criminal case whenever

it is of the opinion that the public interest so requires. State

ex rel. Williams v. Zaleski (1984),

; R.C. 2941.63.

{¶ 34} At the request of the Clark County Prosecuting Attorney,

and pursuant to R.C. 2941.63, the Clark County Common Pleas Court

appointed special prosecutors to handle this matter, finding the

request for a special prosecutor to be appropriate. No hearing

into the appointment of a special prosecutor was required.

Zaleski. Defendant does not even allege, much less demonstrate,

how he was prejudiced by the appointment of a special prosecutor.

The prejudice, if there was any, was waived by Defendant’s failure

to timely object. No plain error has been demonstrated.

{¶ 35} Defendant’s third assignment of error is overruled.

FOURTH ASSIGNMENT OF ERROR

{¶ 36} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION

TO SUPPRESS STATEMENTS.”

{¶ 37} Defendant argues that the trial court erred by overruling

his motion to suppress statements he made to police.

{¶ 38} During the previous criminal proceedings against

Defendant in Union County, on the same charges that he abused his

children, Defendant filed a motion to suppress statements he made

to Union County Sheriff’s Detective Jon Kleiber during an interview 14

at Defendant’s place of employment on April 18, 2005. A hearing

was held on September 11, 2006. On September 27, 2006, the trial

court overruled Defendant’s motion to suppress. The court found

that Defendant was not in custody when he made the statements,

that in any event Defendant was properly advised of his Miranda

rights, and that Defendant’s statements were voluntary. On March

23, 2007, the trial court granted the State’s request to dismiss

the case against Defendant without prejudice.

{¶ 39} After criminal proceedings were subsequently filed

against Defendant in Clark County, Defendant filed the same motion

to suppress his oral statements he previously filed in the Union

County case. The trial court held a hearing on February 20, 2008,

at which no witnesses testified. The court instead heard the oral

arguments of counsel. On April 10, 2008, the trial court overruled

Defendant’s motion to suppress his statements.

{¶ 40} The State argues that the doctrine of res judicata bars

relitigation of the motion to suppress Defendant’s statements that

Defendant previously litigated in the Union County proceedings.

We disagree. Res Judicata bars all subsequent actions based on

any claim arising out of a transaction or occurrence that was the

subject matter of a previous action in which a valid, final judgment

was entered. Grava v. Parkman Twp. (1995),

.

The judgment of the Union County Common Pleas Court overruling 15

Defendant’s motion to suppress his statements was interlocutory,

not final, and no final judgment on the charges in that indictment

was entered by the Union County court, which instead dismissed

those charges without prejudice.

{¶ 41} In arguing that the trial court erred in overruling his

motion to suppress his statements, Defendant claims that he was

in custody at the time he gave his statements to police, and that

his statements were not voluntary. However, whether Defendant

was in custody is immaterial, because it is undisputed that Miranda

warnings were given and that Defendant waived his Miranda rights

prior to questioning.

{¶ 42} With respect to Defendant’s claim that his statements

were not voluntary, in State v. Moore, Greene App. No. 07CA93,

, we stated:

{¶ 43} “The Due Process Clause requires an inquiry separate

from custody considerations and compliance with Miranda regarding

whether a suspect's will was overborne by the circumstances

surrounding the giving of a confession. Dickerson v. United States

(2000),

,

,

. Voluntariness

of a confession and compliance with Miranda are analytically

separate inquiries. State v. Pettijean (2000),

,

. Even if Miranda warnings are not required,

a confession may be involuntary if the defendant's will was 16

overborne by the totality of the facts and circumstances

surrounding the giving of his confession. Dickerson; Pettijean.

{¶ 44} “The due process test takes into consideration both the

characteristics of the accused and the details surrounding the

interrogation.

Factors to be considered include the age,

mentality, and prior criminal experience of the accused; the

length, intensity and frequency of the interrogation, the existence

of physical deprivation or mistreatment, and the existence of

threats or inducements. State v. Edwards (1976),

,

. A defendant's statement to police is voluntary

absent evidence that his will was overborne and his capacity for

self-determination was critically impaired due to coercive police

conduct. Colorado v. Spring (1987),

,

,

; State v. Otte,

,

,

.”

{¶ 45} The record demonstrates that following Defendant’s

waiver of his Miranda rights, Defendant was coherent, straight

forward, and very cooperative in answering questions. Although

Defendant was questioned by police for a total of five and one-half

hours, he used the restroom during a break, and there was at all

times food and water available nearby, although Defendant never

requested any of those things. There was no physical deprivation,

mistreatment, or coercive police conduct. No threats or promises 17

were made to Defendant to induce his statements. After the

interview concluded, Defendant left with his wife.

{¶ 46} The totality of the facts and circumstances surrounding

Defendant’s interrogation do not demonstrate that Defendant’s will

was overborne by coercive police conduct and that his confession

was involuntary.

{¶ 47} Defendant’s fourth assignment of error is overruled.

FIFTH ASSIGNMENT OF ERROR

{¶ 48} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION

TO DISMISS FOR DUE PROCESS AND SPEEDY TRIAL VIOLATIONS.”

{¶ 49} On February 5, 2008, Defendant filed a motion to dismiss

the indictment for a violation of his speedy trial rights. On

March 11, 2008, the State filed a memorandum in opposition to

Defendant’s motion. On April 11, 2008, the trial court filed an

Entry overruling Defendant’s motion. The court’s Entry did not

contain any findings of fact or conclusions of law, and merely

stated:

{¶ 50} “Upon review of the Court record, written and oral

arguments of counsel, the Court finds that the Defendant’s motion

to dismiss on grounds of speedy trial and due process violations

is not well taken and the same is denied.”

{¶ 51} On April 14, 2008, Defendant filed a request for written

findings of fact and conclusions of law with respect to the trial 18

court’s denial of Defendant’s motion to dismiss on speedy trial

grounds. Prior to the commencement of trial, the court, by oral

pronouncement, denied Defendant’s request for written findings

of fact and conclusions of law.

{¶ 52} By Decision and Entry filed on December 16, 2010, we

remanded this case to the trial court for findings of fact and

conclusions of law with respect to the trial court’s denial of

Defendant’s motion to dismiss for a violation of his speedy trial

rights. We further provided the parties with ample opportunity

to file additional briefs on this issue after the trial court’s

findings were filed.

{¶ 53} On May 11, 2011, the trial court filed an Entry containing

its findings of fact and conclusions of law with respect to the

trial court’s denial of Defendant’s motion to dismiss on speedy

trial grounds. No additional briefs on the speedy trial issue

have been filed by either party.

{¶ 54} The Sixth Amendment to the United States Constitution

and Article I, Section 10 of the Ohio Constitution guarantee a

criminal defendant the right to a speedy trial. In Ohio that right

is implemented by the statutory scheme imposing specific time

limits in R.C. 2945.71 et seq. State v. Pachey 91980),

. The particular rights which that statutory scheme

confers attach when criminal charges are placed against a 19

defendant. They continue in operation so long as those charges

remain pending, until he is brought to trial.

{¶ 55} R.C. 2945.71(C)(2) requires the State to bring a person

against whom a felony charge is pending to trial within two hundred

and seventy days after the person’s arrest, unless the time for

trial is extended pursuant to the provisions in R.C. 2945.72.

Each day the person is held in jail in lieu of bail on the pending

charge is counted as three days. R.C. 2945.71(E). For a violation

of the rights these sections confer, a defendant may seek a

discharge from criminal liability pursuant to R.C. 2945.73. The

merits of a motion for discharge for a violation of speedy trial

rights made pursuant to R.C. 2945.73 are determined as of the date

the motion is filed, not when it is decided or when, after a denial,

a defendant is brought to trial. State v. Morris, Montgomery App.

No. 19283,

.

{¶ 56} The time limits for bringing a defendant to trial may

be extended or tolled by R.C. 2945.72, which provides in relevant

part:

{¶ 57} “The time within which an accused must be brought to

trial, or, in the case of felony, to preliminary hearing and trial,

may be extended only by the following:

{¶ 58} “* * *

{¶ 59} “(E) Any period of delay necessitated by reason of a 20

plea in bar or abatement, motion, proceeding, or action made or

instituted by the accused;

{¶ 60} “* * *

{¶ 61} “(H) The period of any continuance granted on the

accused’s own motion, and the period of any reasonable continuance

granted other than upon the accused’s own motion.”

{¶ 62} A review of the files and records in this case reveals

that at the time Defendant filed his motion to dismiss for want

of a speedy trial on February 5, 2008, far more than the 270 days

allowed for trial by R.C. 2945.71 had elapsed since Defendant was

first served with a summons on the original indictment in Union

County, Ohio, on August 7, 2006. Thus, Defendant established a

prima facie case for discharge pursuant to R.C. 2945.73, and the

burden shifted to the State to demonstrate that Defendant was

brought to trial within the time required by R.C. 2945.71 and

2945.72. State v. Geraldo (1983),

. The State

has met its burden in this case.

The Union County Case

{¶ 63} Defendant was indicted on these same charges in Union

County, Ohio, on August 4, 2006. On August 7, 2006, Defendant

was served with a summons on that indictment, at which point the

speedy trial time began to run. Defendant was not arrested on

these charges. Speedy trial time ran from August 7, 2006 until 21

August 15, 2006, at which time Defendant filed several pretrial

motions including a motion for a change of venue, a demand for

discovery, a motion to dismiss the indictment, and a motion to

suppress evidence, which tolled the time for trial pursuant to

R.C. 2945.72(E). From August 7, 2006, until August 15, 2006, eight

days chargeable to the State for speedy trial purposes elapsed.

From August 15, 2006, until September 27, 2006, when the trial

court ruled on many of Defendant’s pending pretrial motions, the

time for trial was tolled pursuant to R.C. 2945.72(E).

{¶ 64} On September 27, 2006, the speedy trial time began

running again and ran until October 20, 2006, when Defendant began

filing from that date onward a number of additional pretrial

motions, including a motion to compel the State to produce one

of the child victims for trial, a motion for a protective order,

a motion to compel discovery, a motion in limine, and a motion

for a directed verdict. Those motions tolled the time for trial

pursuant to R.C. 2945.72(E). Furthermore, on January 30, 2007,

the trial court granted a reasonable continuance of the trial at

the State’s request. That continued the time for trial pursuant

to R.C. 2945.72(H). On March 22, 2007, the State dismissed this

case without prejudice.

{¶ 65} As the trial court correctly points out in its findings

of fact and conclusions of law on the speedy trial issue, throughout 22

the pendency of these proceedings in Union County, Ohio, Defendant

filed many pretrial motions, several of which extended the time

for trial pursuant to R.C. 2945.72. Defendant concedes this fact

in his appellate brief. Some of those pretrial motions remained

pending at the time the State dismissed this case on March 22,

2007. As the trial court noted, nearly every delay of the trial

was occasioned by motions made by the defendant.

{¶ 66} Between September 27, 2006, and October 20, 2006,

twenty-three days chargeable to the State for speedy trial purposes

elapsed. From October 20, 2006, until March 22, 2007, when the

State dismissed this case, the time for trial was tolled as a result

of Defendant’s pretrial motions that were still pending, R.C.

2945.72(E), and the granting of a reasonable continuance of the

trial other than upon the accused’s own motion, R.C. 2945.72(H).

At the time the State dismissed this case on March 22, 2007, which

ended the Union County proceedings, a total of thirty-one days

chargeable to the State for speedy trial purposes had elapsed.

The Clark County Case

{¶ 67} Defendant was reindicted on these same charges in Clark

County, Ohio, on October 16, 2007. The time period between the

State’s dismissal of this case on March 22, 2007, and Defendant’s

reindictment on these same charges on October 16, 2007, is not

included in the speedy trial computations because no charges were 23

pending against Defendant during that time. State v. Broughton

(1991),

. However, upon reindicting Defendant

in a subsequent indictment premised upon the same facts alleged

in the original indictment, the State does not get a fresh 270

day time period to bring Defendant to trial. Rather, any time

period that elapsed under the original indictment is tacked onto

the time period commencing with the second indictment.

{¶ 68} On October 17, 2007, Defendant was served with a summons

on the Clark County indictment and the speedy trial time began

to run. Defendant was not arrested on these charges. Speedy trial

time ran from October 17, 2007, until February 5, 2008, at which

time Defendant filed a motion to dismiss and a motion to suppress

the evidence which tolled the time for trial pursuant to R.C.

2945.72(E). From October 17, 2007, until February 5, 2008, one

hundred and eleven days chargeable to the State for speedy trial

purposes elapsed. From February 5, 2008, until April 10, 2008,

when the trial court overruled Defendant’s motion to dismiss and

his motion to suppress the evidence, the time for trial was tolled

pursuant to R.C. 2945.72(E).

{¶ 69} On April 10, 2008, the trial court overruled Defendant’s

motion to dismiss and his motion to suppress, and the speedy trial

time began running again, and ran until April 14, 2008, at which

time Defendant’s jury trial commenced. Between April 10, 2008, 24

and April 14, 2008, four days chargeable to the State for speedy

trial purposes elapsed.

{¶ 70} At the time Defendant filed his motion to dismiss on

February 5, 2008, claiming a violation of his speedy trial rights,

thirty one days chargeable to the State for speedy trial purposes

had elapsed during the Union County proceedings, and one hundred

and eleven days chargeable to the State for speedy trial purposes

had elapsed during the Clark County proceedings, for a total of

one hundred and forty-two elapsed days. That is well within the

two hundred and seventy day limit allowed by R.C. 2945.71 for

bringing Defendant to trial.

{¶ 71} Furthermore, at the time Defendant’s jury trial

commenced in Clark County, on April 14, 2008, a total of one hundred

and fifteen days chargeable to the State for speedy trial purposes

had elapsed in the Clark County proceedings. That figure added

to the thirty-one days chargeable to the State for speedy trial

purposes that elapsed during the Union County proceedings, results

in a total of one hundred and forty-six days chargeable to the

State for speedy trial purposes that had elapsed. Again, that

is well within the allowable two hundred and seventy day limit

for bringing Defendant to trial. R.C. 2945.71. Defendant’s

speedy trial rights were not violated in this case.

{¶ 72} Defendant also complains that his constitutional speedy 25

trial rights were violated when, following a failed prosecution

in Union County, Ohio, there was a seven month delay in

re-initiating charges in Clark County, Ohio, which were identical

to and based upon the same facts as the Union County charges.

In determining whether this delay violated Defendant’s

constitutional speedy trial rights, it is necessary to balance

and weigh the conduct of the prosecution and the defendant by

examining four factors: (1) the length of the delay; (2) the reason

for the delay; (3) Defendant’s assertion of his speedy trial rights;

and (4) the prejudice to Defendant as a result of the delay. Barker

v. Wingo (1972),

,

,

.

The first factor, the length of the delay, performs a gate-keeping

function to the extent that a delay approaching one year typically

is required to establish “presumed prejudice,” the existence of

which is necessary to trigger an inquiry into the other three Barker

factors. Barker, at 530; Doggett v. United States (1992),

,

,

; State v. Triplett (1997),

; State v. Bailey, Montgomery App. No. 20764,

.

{¶ 73} Here, the seven month delay between dismissal of the

Union County, Ohio, proceeding by the State and Defendant’s

reindictment on those same charges in Clark County, Ohio, is legally

insufficient to establish presumed prejudice and trigger a review 26

of the other Barker factors. Defendant’s constitutional speedy

trial rights were not violated.

{¶ 74} Defendant’s fifth assignment of error is overruled.

SIXTH ASSIGNMENT OF ERROR

{¶ 75} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION

FOR A CONTINUANCE OF THE JURY TRIAL.”

{¶ 76} The grant or denial of a continuance is a matter entrusted

to the broad, sound discretion of the trial court, and an appellate

court must not reverse the trial court’s decision absent an abuse

of discretion. State v. Unger (1981),

. An abuse

of discretion means more than a mere error of law or an error in

judgment. It implies an arbitrary, unreasonable, unconscionable

attitude on the part of the trial court. State v. Adams (1980),

.

{¶ 77} In Ungar v. Sarafite (1964),

,

,

, the United States Supreme Court stated:

{¶ 78} “The matter of continuance is traditionally within the

discretion of the trial judge, and it is not every denial of a

request for more time that violates due process even if the party

fails to offer evidence or is compelled to defend without counsel.

Avery v. Alabama,

,

,

.

Contrariwise, a myopic insistence upon expeditiousness in the face

of a justifiable request for delay can render the right to defend 27

with counsel an empty formality. Chandler v. Fretag,

,

,

. There are no mechanical tests for deciding

when a denial of a continuance is so arbitrary as to violate due

process. The answer must be found in the circumstances present

in every case, particularly in the reasons presented to the trial

judge at the time the request is denied. Nilva v. United States,

,

,

; Torres v. United States,

(C.A.9th Cir.); cf. United States v. Arlen,

(C.A.2d Cir.).”

{¶ 79} The Ohio Supreme Court has adopted a balancing test that

weighs against any potential prejudice to a defendant, concerns

such as the court’s right to control its own docket, and the public’s

interest in the prompt and efficient dispatch of justice. Unger,

. In evaluating a motion for a continuance,

the court should consider: the length of the delay requested;

whether other continuances have been requested and received; the

inconvenience to litigants, witnesses, opposing counsel and the

court; whether the requested delay is for legitimate reasons or

whether it is dilatory, purposeful, or contrived; whether the

defendant contributed to the circumstances which give rise to the

request for a continuance; and other relevant factors, depending

on the unique facts of each case.

.

{¶ 80} On February 12, 2008, the court ordered trial of this 28

case to commence on April 14, 2008. On February 20, 2008, the

trial court ordered the State to provide Defendant with a bill

of particulars, which the State filed on March 28, 2008, but which

Defendant did not receive until April 1, 2008. On April 4, 2008,

Defendant filed a motion to dismiss and/or continue the trial,

claiming that because of the State’s late filing of the bill of

particulars, Defendant needed more time to both file motions

raising new legal issues that arise as a result of the bill of

particulars and prepare for trial. That same day, April 4, 2008,

the State filed its response, a memorandum contra Defendant’s

motion to dismiss and/or continue the trial.

{¶ 81} The State argued that Defendant’s request for a

continuance, based upon the fact that the bill of particulars filed

by the State raised new legal issues and was merely a delaying

tactic, because Defendant had received essentially the same bill

of particulars on August 29, 2006, over a year before, during

the Union County proceedings, and Defendant at all times had open

access to the State’s entire file in this matter and therefore

knew the facts and issues in this case. On April 11, 2008, the

trial court filed its Entry denying Defendant’s request for a

continuance of the trial. On April 14, 2008, Defendant filed a

motion seeking reconsideration of the court’s previous ruling

denying a continuance. Just prior to the start of trial on April 29

14, 2008, Defendant again orally moved for a continuance of the

trial. After hearing the arguments of counsel, the trial court

again denied Defendant’s motion for a continuance.

{¶ 82} The principal reason for Defendant’s request for a

continuance was his claim that the bill of particulars filed in

2006 in the Union County proceedings had been found by that court

to lack specificity sufficient to fairly put Defendant on notice

of what conduct on his part constituted the criminal offense(s)

with which he was charged, and that the nearly identical bill of

particulars filed on March 28, 2008, in the Clark County

proceedings, suffered from the same deficiencies, because it failed

to provide specific dates, times, and places the offenses occurred,

and that those deficiencies had to be cured by a more specific

bill of particulars before Defendant could properly prepare his

defense. Simply stated, Defendant wanted a continuance to compel

a more specific bill of particulars.

{¶ 83} Although there is no indication that a previous

continuance had been sought by Defendant, the delay Defendant

sought was of unspecified length. The State argued that the trial

should not be delayed because the victims were prepared to go

forward, so they could move on with their lives. Furthermore,

as discussed in more detail in Defendant’s seventh assignment of

error, in addition to the bill of particulars filed on March 28, 30

2008, the State also filed an amended indictment and bill of

particulars on April 18, 2008, but was unable to provide an exact

date, time, and place for every offense because it did not possess

any more particular or specific information than that already

provided. In that regard, we note that the abuse of these children

involved a continuing course of conduct that occurred just about

every day, over a prolonged period of several years, when the

victims were young children. Moreover, Defendant has failed to

demonstrate how he was prejudiced by the bill of particulars.

{¶ 84} On these facts and circumstances, an abuse of discretion

on the part of the trial court in denying Defendant’s requested

continuance has not been demonstrated. Defendant’s sixth

assignment of error is overruled.

SEVENTH ASSIGNMENT OF ERROR

{¶ 85} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION

FOR AN ORDER COMPELLING THE STATE TO PROVIDE A PROPER AND SPECIFIC

BILL OF PARTICULARS.”

{¶ 86} On March 28, 2008, two weeks before trial, the State

filed a bill of particulars in compliance with the trial court’s

previous order that a bill of particulars be filed. Defendant

complains that this bill of particulars filed by the State was

strikingly similar to the one the Union County Court of Common

Pleas found to be deficient. On the morning of trial, April 14, 31

2008, Defendant filed a motion to compel the State to file a proper

and more specific bill of particulars. The trial court addressed

the matter prior to the commencement of trial and overruled

Defendant’s motion. The court concluded that given the nature

of the alleged offenses, the State could not provide more specific

information.

{¶ 87} The offenses charged in this case involved the horrendous

physical abuse of five young children that occurred almost daily

over an extended period of time. The indictment filed on October

16, 2007, the bill of particulars filed on March 28,2008, and the

amended indictment and bill of particulars filed on April 18, 2008,

all specified that the offenses occurred during a four-year period

of time, from July 24, 2000 through November 19, 2004.

{¶ 88} Defendant was charged with multiple counts of

endangering children, R.C. 2919.22(B)(1)-(4), permitting child

abuse, R.C. 2903.15(A), and felonious assault, R.C. 2903.11(A)(1).

The precise date and time of the offenses are not essential

elements of those crimes. State v. Barnecut (1988),

. Thus, a certain degree of inexactitude in averring the date

of the offense is not per se impermissible or fatal to the

prosecution. State v. Sellards (1985),

; State

v. Lawrinson (1990),

.

{¶ 89} Nevertheless, where an accused requests a bill of 32

particulars, the State must supply specific dates and times for

the alleged offense if it possesses that information.

Furthermore, even if the State is unable to supply more

specific dates for the offenses charged because it does not possess

such information, the absence of specific dates may yet be fatal

to the prosecution if it results in material detriment to the

accused’s ability to fairly defend himself, as where the accused

asserts an alibi or claims that he was indisputably elsewhere during

part, but not all, of the interval specified.

{¶ 90} In many cases involving child abuse the victims are young

children who are simply unable to remember exact dates and times,

particularly where the crimes involve a repeated course of conduct

over an extended period of time.

That is the

case here. Furthermore, there is no evidence that the State knew

of any more specific dates for the offenses than those in the

indictment and bill of particulars. The State was simply unable

to supply specific dates when each of these many offenses occurred

because it did not have that information.

{¶ 91} The only remaining question is whether the State’s

inability to supply more specific dates and times for each of these

many offenses that occurred over a four-year period resulted in

material detriment to Defendant’s ability to defend himself.

Defendant claims in conclusory fashion that is the case, but fails 33

to identify how he was prejudiced by the lack of precise dates

and times. He claims only that it was strikingly similar to the

bill of particulars the Union County Common Pleas Court had found

deficient. That bare contention fails to demonstrate prejudice.

{¶ 92} Defendant’s defense at trial was not that he was

indisputably elsewhere during part, but not all, of the times

specified for when these offenses occurred. Instead, Defendant’s

defense was that the children’s stories about being abused were

grossly exaggerated and therefore lies, that they were induced

by leading questions and coaching by investigators, that

Defendant’s punishment of the children was proper parental

discipline, and that it was Defendant’s wife, Vonda Ferguson, not

Defendant, who abused the children. The inexactitude in supplying

dates and times that these offenses occurred would not be a material

detriment to Defendant’s ability to defend himself on those

theories. Barnecut. No violation of Defendant’s right to a fair

trial or due process has been demonstrated.

{¶ 93} Defendant’s seventh assignment of error is overruled.

EIGHTH ASSIGNMENT OF ERROR

{¶ 94} “THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A

CUMULATIVE SIXTY-FIVE YEAR SENTENCE.”

{¶ 95} Defendant argues that the trial court abused its 34

discretion in sentencing him to a sixty-five year prison term,

which Defendant claims is excessive.

{¶ 96} In State v. Jeffrey Barker, Montgomery App. No. 22779,

, at ¶36-38, we wrote:

{¶ 97} “The trial court has full discretion to impose any

sentence within the authorized statutory range, and the court is

not required to make any findings or give its reasons for imposing

maximum, consecutive, or more than minimum sentences. State v.

Foster,

,

,

, at

paragraph 7 of the syllabus. Nevertheless, in exercising its

discretion the trial court must consider the statutory policies

that apply to every felony offense, including those set out in

R.C. 2929.11 and 2929.12. State v. Mathis,

,

,

, at ¶ 37.

{¶ 98} “When reviewing felony sentences, an appellate court

must first determine whether the sentencing court complied with

all applicable rules and statutes in imposing the sentence,

including R.C. 2929.11 and 2929.12, in order to find whether the

sentence is contrary to law. State v. Kalish,

,

,

. If the sentence is not clearly

and convincingly contrary to law, the trial court's decision in

imposing the term of imprisonment must be reviewed under an abuse

of discretion standard.

35

{¶ 99} “‘The term “abuse of discretion” connotes more than an

error of law or judgment; it implies that the trial court's attitude

is unreasonable, arbitrary, or unconscionable.’ State v. Adams

(1980),

,

.”

{¶ 100} A review of the sentencing hearing demonstrates that

the trial court considered the presentence investigation report,

the purposes and principles of felony sentencing, R.C. 2929.11,

the seriousness and recidivism factors, R.C. 2929.12, statements

by all parties at sentencing, and the victim impact statements.

The court also informed Defendant about post-release control

requirements. Accordingly, the trial court complied with all

applicable rules and statutes in imposing its sentence.

Furthermore, although the eight-year prison terms imposed for the

endangering children and felonious assault counts and the five

year prison terms imposed for the permitting child abuse counts

were the maximum sentences allowed by law for felonies of the second

and third degrees, respectively, those terms are nevertheless

within the authorized range of available punishments. R.C.

2929.14(A)(2), (3). Defendant’s sentence is not clearly and

convincingly contrary to law. Kalish.

{¶ 101} In arguing that his sixty-five year prison term is

excessive and constitutes an abuse of the trial court’s discretion,

Defendant points out that he has no previous convictions, he has 36

lost his job at the Honda plant where he worked for twenty years,

he does not drink alcohol, smoke, or use drugs, and he is an

extremely religious man who often does volunteer work at his church.

As the trial court noted, however, Defendant’s conduct constitutes

multiple counts of child abuse involving horrific physical and

mental abuse and torture of his young children that occurred on

an almost daily basis for several years. That abuse resulted

in serious physical and psychological harm to Defendant’s children.

R.C. 2929.12(B)(2). Defendant’s relationship with the victims,

their parent, facilitated the offense. R.C. 2929.12(B)(6).

There are no grounds that mitigate the seriousness of Defendant’s

conduct. Accordingly, Defendant’s conduct constitutes the worst

form of the offense. Furthermore, although Defendant has no prior

criminal record and was a law abiding citizen for many years,

Defendant shows no genuine remorse. R.C. 2929.12(D)(5). A

minimum prison term would demean the seriousness of these offenses.

{¶ 102} Although the trial court imposed the maximum sentence

allowable for each offense, it ran some sentences concurrently

and others consecutively for a total sentence of sixty-five years.

The record before us justifies the sentence imposed on Defendant.

No abuse of discretion on the part of the trial court is

demonstrated.

{¶ 103} Defendant’s eighth assignment of error is overruled. 37

NINTH ASSIGNMENT OF ERROR

{¶ 104} “THE TRIAL COURT ERRED IN NOT MAKING A COMPLETE RULING

ON THE ISSUE OF COURT COSTS AND RESTITUTION.”

{¶ 105} In his ninth and final assignment of error, Defendant

argues only one issue with respect to the imposition of court costs

and restitution: that the trial court’s original June 10, 2008

Judgment Entry of Conviction did not constitute a final, appealable

order because it did not include court costs and instead indicated

that issue was still before the court and would be set for a hearing

at a later date. In its brief, the State agreed with Defendant

that the trial court’s Judgment Entry of Conviction is not a final,

appealable order because it did not include the costs of

prosecution, and requested that we remand the matter to the trial

court to calculate and impose court costs.

{¶ 106} In our Decision and Entry filed on July 14, 2010, we

concluded that because the record in this case demonstrates that

when the trial court filed its Judgment Entry of Conviction it

clearly intended to impose court costs but deferred determination

of the amount of those costs, the court’s failure to calculate

and include court costs in its Judgment Entry of Conviction

constitutes a clerical error that may be corrected per Crim.R.

36, and does not render the Judgment Entry of Conviction non-final.

We remanded the matter to the trial court to determine the amount 38

of court costs and restitution, if any, Defendant must pay, and

include those matters in its Judgment Entry of Conviction. On

October 28, 2010, the trial court filed its Amended Judgment Entry

of Conviction wherein it reimposed the same terms of imprisonment

upon Defendant and ordered Defendant to pay costs of the prosecution

in the amount of $20,681.92, but declined to order any restitution

due to the length of Defendant’s sentence and his financial state.

The court also ordered Defendant to pay additional court costs

in the amount of $9,786.49.

{¶ 107} No notice of appeal has been filed by either party from

the trial court’s October 28, 2010 Amended Judgment Entry of

Conviction, and neither party has filed a supplemental brief

challenging the amount of costs imposed by the trial court in this

case, or the trial courts’ refusal to order restitution.

Accordingly, Defendant’s finality argument in this assignment of

error has become moot by virtue of the trial court’s October 28,

2010 Amended Judgment Entry of Conviction. There being no other

issue raised relevant to court costs or restitution, Defendant’s

ninth assignment of error is overruled.

{¶ 108} The judgment of the trial court will be affirmed.

FROELICH, J., concurs

BROGAN, J. concurring separately. 39

(Hon. James A. Brogan, retired from the Second District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)

BROGAN, J., concurring:

{¶ 109} I concur in the well-reasoned opinion of Judge Grady

in all respects except whether the court’s judgment entry of July

14, 2010 was a final appealable order. In State v. Threatt,

,

, the Ohio Supreme Court held that

a sentencing entry is a final appealable order as to costs. Justice

Stratton writes in pertinent part the following:

{¶ 110} “ ‘A judgment that leaves issues unresolved and

contemplates that further action must be taken is not a final

appealable order.’ Bell v. Horton (2001),

,

. For example, an order that determines

liability but defers the determination of damages is not a final

appealable order, because it does not in effect determine the action

and prevent a judgment or otherwise meet the definition in R.C.

2505.02(B)(1). State ex rel. A&D Ltd. Partnership v. Keefe (1996),

, 53,

. However, when the remaining

issue ‘is mechanical and unlikely to produce a second appeal because

only a ministerial task similar to asserting costs remains,’ then

the order is final and appealable. (Emphasis added.) State ex 40

rel. White v. Cuyahoga Metro. Hous. Auth. (1997),

,

.

{¶ 111} “Pursuant to R.C. 2947.23, it is undisputed that trial

courts have authority to assess costs against convicted criminal

defendants. When a court assesses unspecified costs, the only

issue to be resolved is the calculation of those costs and creation

of the bill. Calculating a bill for the costs in a criminal case

is merely a ministerial task. Therefore, we hold that failing

to specify the amount of costs assessed in a sentencing entry does

not defeat the finality of the sentencing entry as to costs. See

State v. Slater, Scioto App. No. 01CA2806,

,

, ¶ 5, fn. 3.”

{¶ 112} More than two years before the court imposed the

sentence upon Ferguson, the State filed a motion to certify the

costs of prosecution as “court costs” under R.C. 2947.23. There

is a dispute in Ohio appellate courts whether the “costs of

prosecution” provision in R.C. 2947.23 includes special prosecutor

fees. See State v. Sales (Aug. 6, 1985), Carroll App. No. 504

and State v. Perz (May 16, 2008), Lucas App. No. L-07-1330. See

also State v. Noe (December 31, 2009), Lucas App. No. 06-1393,

L-09-1193. Certainly this issue is not mechanical and unlikely

to produce a second appeal because it is a “ministerial” task such

as calculating a bill for costs as performed by court clerks. 41

{¶ 113} I therefore believe the July 14, 2010 judgment entry

was not a final appealable order because it required the trial

court to determine the threshold question of whether the special

prosecutor fees were costs as encompassed by R.C. 2947.23. The

court’s order did not involve a “clerical error” as contemplated

by Crim.R. 36. The trial court clearly intended to address that

legal issue at a later date. Therefore, Ferguson’s first appeal

should have been treated as a premature appeal until the court

finally resolved all legal issues before it including the issue

of special prosecutor fees as costs. After the court determined

that issue upon remand, the appeal was in a final appealable

posture. Since Ferguson did not challenge this Court’s costs award

upon remand, I would affirm the trial court’s judgment in all

respects.

. . . . . . . . .

Copies mailed to:

David W. Phillips, Esq. David R. Miles, Esq. Hon. Richard J. O’Neill