[Cite as State v. Taylor,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Sheila G. Farmer, P. J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. John W. Wise, J. vs. : : Case No. 16 CA 17 DAN TAYLOR, JR. : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 15 CR 777

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 21, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

BAMBI COUCH PAGE DAVID M. WATSON PROSECUTING ATTORNEY 3 North Main Street DANIEL M. ROGERS Suite 702 ASSISTANT PROSECUTOR Mansfield, Ohio 44902 38 South Park Street Mansfield, Ohio 44902 Richland County, Case No. 16 CA 17 2

Wise, J.

{¶1} Appellant Dan Taylor, Jr. appeals his conviction on two counts of domestic

violence and one count of felonious assault following a jury trial.

{¶2} Appellee is State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} On August 29, 2015 around 11:30 p.m., Appellant Dan Taylor, Jr. and his

wife M.T. had an argument in the bedroom of the home they shared with M.T.’s father,

J.J. in Shelby, Ohio. [T. at 136-140]. According to M.T., the argument arose out of her

refusal to drive Appellant to Mansfield to purchase Crack Cocaine. [T. at 183-184]. J.J.,

a seventy-two (72) year old man with diabetes, went into the bedroom, observed

Appellant threatening M.T. with a knife, and attempted to calm Appellant down. [T. at

140-141]. Appellant shoved J.J., causing him to fall into a dresser and cut his arm.

J.J. left the bedroom and called 911. [T. at 142-143, 182, 185].

{¶4} When Appellant saw J.J. calling 911, he punched him in the face and

knocked out one of his teeth. Appellant then told J.J. "that's for calling the cops." [T. at

142-143, 334-335]. After punching J.J. in the face, Appellant left before the police

arrived. [T. at 145].

{¶5} After leaving, Appellant encountered J.J.’s neighbor, Robert Shetler. [T. at

301-303]. Appellant told Mr. Shetler "you're a cracker. Come over and get some of this.

I got my peeps coming. It's your fault." [T. at 303].

{¶6} Sergeant Bushey, Deputy Berry and Deputy Knee with Richland County

Sheriff’s Office (RCSO) and Patrolman Hartz with Shelby PD responded to the 911 call.

[T. at 178-181, 324-326, 332]. M.T., who had a laceration in her head, informed officers Richland County, Case No. 16 CA 17 3

that Appellant had assaulted her and her father. [T. at 182-183, 185]. M.T. also advised

officers that Appellant had left the residence, and that he might be hiding in a nearby

field. [T. at 182]. J.J. informed officers that Appellant shoved him and subsequently

punched him in the face. [T. at 185].

{¶7} M.T. completed and signed a written statement and Domestic Violence

packet indicating that Appellant struck her with a closed fist, slapped her, pushed her,

and threatened her with a knife. [T. at 327-330]. J.J. also completed a written statement

describing Appellant shoving him and punching him in the face. [T. at 334-335].

{¶8} Dep. Berry recovered a knife from the bedroom Appellant and M.T. shared

and observed blood stains on the bed and on the handle of the front door of the house.

[T. at 327, 330-332]. Deputies took photographs, which included J.J.’s and M.T.’s

injuries, the knife, and the blood stains on the bed and door handle. [T. at 330-334].

{¶9} Shelby EMS also responded and treated J.J. and M.T. for their injuries. J.J

and M.T. both declined to be taken to the hospital at that time. [T. at 336]. Officers were

unable to locate Appellant and left the scene around 12:45 am on August 30, 2015. [T

at. 306].

{¶10} At approximately 1:30 a.m. on August 30, 2015, Appellant returned to the

house. [T. at 147-150, 186]. J.J. asked Appellant to leave and when he refused, J.J.

grabbed his .12 gauge pump shotgun and fired a “warning shot” into the ground.

Appellant ignored J.J.’s warnings, walked inside the house, and went into the bedroom

with M.T..

Appellant punched M.T. in the face, on the opposite side from her earlier

laceration, and ordered her to lay in bed with him. [T. at 345-346]. Richland County, Case No. 16 CA 17 4

{¶11} Mr. Shetler, his roommate Lynn Moon, and his friend Don McCoy heard

the gunshot and called 911. [T. at 305-307, 315-318].They also went over to the house,

whereby Mr. Moon took possession of J.J.’s shotgun, unloaded it and placed it on Mr.

Shetler's back porch. [T. at 317-319]. Officers with RCSO, Shelby Police Department,

Plymouth Police Department and the Ohio State Highway Patrol, along with Shelby

EMS, responded to the scene. [Tr. 186-187, 287-288, 340]. Sgt. Bushey seized J.J.’s

shotgun and submitted it to RCSO. [Tr.188]. Officers then set up a perimeter around the

property to prevent Appellant from leaving the residence. [T. at 189-191, 340]. Dep.

Berry looked through the bedroom window and observed Appellant and M.T. lying in

bed together. [T. at 191, 341]. Dep. Berry identified himself and ordered Appellant to

show his hands. [T. at 342]. Once Dep. Berry had clear view of Appellant's hands, he

ordered other officers to enter the residence. Appellant was thereafter arrested without

incident. [T. at 191-192, 289-290, 342].

{¶12} As Dep. Berry escorted Appellant to his patrol car, Appellant stated "I'll

beat this one like I beat the last seven." [T. at 343]. A subsequent search of Appellant's

criminal history revealed multiple prior arrests and convictions for Domestic Violence.

[T. at 344-345].

{¶13} Following Appellant's arrest, Shelby EMS transported J.J. and M.T. to

Shelby Hospital for treatment. [T.at 151-153, 231- 232, 244]. While at Shelby Hospital,

M.T. advised Nurse Natasha Rinehart that Appellant hit her in the head with a beer

bottle. [T. at 231-232]. Doctors treated M.T. for the laceration on the right side of her

head, swelling on the left side of her head, bruising on her neck, bruising and swelling

on her left index finger, and a possible concussion. [T. at 232]. Richland County, Case No. 16 CA 17 5

{¶14} J.J. advised Nurse Jill Wheeler that Appellant shoved him and punched

him in the face. [T. at 247]. Doctors treated J.J. for a cut to his lip, the missing tooth and

the laceration to his arm. [T. at 244-247].

{¶15} On September 1, 2015, Appellant called M.T. from the jail and asked her

to lie about the cause of her injuries. [T. at 216-220].

{¶16} On September 3, 2015, Sgt. Henderson with RCSO met with M.T. and

photographed her injuries prior to Appellant's preliminary hearing in Mansfield Municipal

Court. [T. at 290-291].

{¶17} On October 15, 2015, the Richland County Grand Jury indicted Appellant

Dan Taylor, Jr. on three (3) counts stemming from the events of August 30, 2015.

Counts 1 and 2 of the indictment charged Appellant with Domestic Violence against

his wife and father-in-law, a third degree felony pursuant to R.C. 2919.25(A) based

on Appellant's prior convictions for Domestic Violence. Count 3 of the indictment

charged Appellant with Felonious Assault against his father-in-law, a second-degree

felony pursuant to R.C. 2903.11(A)(1).

{¶18} On October 16, 2015, Appellant filed a pro se "Motion for Speedy Trial"

with the Trial Court. The trial court never ruled upon Appellant's "Motion for Speedy

Trial."

{¶19} During his arraignment on October 17, 2015, Appellant pled not guilty

to the indictment. The trial court scheduled a Prosecutor Pretrial for November 10,

2015 and ordered Appellant to not have contact with M.T. or J.J.

{¶20} On October 28, 2015, Appellant filed a "Demand for Discovery." Richland County, Case No. 16 CA 17 6

{¶21} On November 2, 2015, the trial court scheduled Appellant's jury trial for

November 19, 2015.

{¶22} On November 3, 2015, Appellant filed a "Motion for Continuance of

Trial."

{¶23} On September 19 and November 14, 2015, M.T. violated the no-contact

orders imposed by Mansfield Municipal Court and the trial court by visiting Appellant in

Richland County Jail. [T. at 215]. M.T. signed in under a different name when she

visited Appellant. [T. at 215, 217].

{¶24} On November 18, 2015, the trial court granted Appellant's "Motion for

Continuance of Trial" and continued Appellant's trial until January 7, 2016.

{¶25} On November 19, 2015, the trial court scheduled a Final Pretrial for

December 28, 2015.

{¶26} On January 5, 2016, Appellant, while represented by trial counsel, filed

a pro se "Motion to Discharge" asking the trial court to dismiss the indictment based

on the State violating his speedy trial rights.

{¶27} On January 7, 2016, the trial court continued Appellant's jury trial to

February 11, 2016, due to Richland C.P. No. 2015-CR-324 proceeding to trial.

{¶28} On January 28, 2016, the State filed a "Response to Defendant's

Motion to Dismiss."

{¶29} On February 9, 2016, the trial court overruled Appellant's "Motion to

Discharge" finding that only 160 out of the permitted 270 days had elapsed, as

Appellant's "Demand for Discovery" on October 28, 2015, Appellant's "Motion for Richland County, Case No. 16 CA 17 7

Continuance of Trial" on November 3, and the trial court's continuance from

February 11, 2016, all tolled Appellant's speedy trial time.

{¶30} On February 11, 2016, Appellant's case proceeded to jury trial. During

trial, the State presented testimony from nine (9) witnesses and introduced twenty

(20) exhibits. [Tr. 261- 263]. The trial court allowed the State to treat M.T. as a

court's witness after she provided testimony contradicting her prior statements to

police and medical personnel and admitted that she was protecting Appellant. [T. at

203-210].

{¶31} On February 12, 2016, the jury found Appellant guilty on all three (3)

counts of the indictment. Following the verdict, the trial court scheduled sentencing

for February 17, 2015.

{¶32} On February 17, 2015, the trial court sentenced Appellant to prison

terms of three (3) years on Counts 1 and 2 and eight (8) years on Count 3. The trial

court ordered that Appellant's sentences on Counts 1 and 3 run consecutively to

each other and concurrently with Count 2, for a total prison term of eleven (11)

years. The trial court also imposed three (3) years of mandatory post-release

control.

{¶33} On February 19, 2016, the trial court issued an order granting Appellant

169 days of jail time credit.

{¶34} Appellant now appeals, raising the following errors for review:

ASSIGNMENTS OF ERROR

{¶35} “I. THE TRIAL COURT ERRED BY OVERRULING DEFENDANT'S

MOTION TO DISCHARGE BECAUSE HE WAS NOT BROUGHT TO TRIAL WITHIN Richland County, Case No. 16 CA 17 8

THE TIME REQUIRED BY SECTIONS 2945.71 AND 2945.72 OF THE REVISED

CODE.

{¶36} “II. THE TRIAL COURT ERRED BY FAILING TO MERGE THE

CONVICTIONS FOR FELONIOUS ASSAULT AND DOMESTIC VIOLENCE IN

VIOLATION OF OHIO MERGER LAW AND MR. TAYLOR'S RIGHTS TO DUE

PROCESS AND AGAINST BEING SUBJECTED TO DOUBLE JEOPARDY.”

I.

{¶37} In his First Assignment of Error, Appellant argues that the trial court erred

in overruling his motion for a speedy trial. We disagree.

{¶38} The right to a speedy public trial is established in the Ohio Constitution,

Article I, Section 10. “In any trial, in any court, the party accused shall be allowed to

appear and defend in person and with counsel; to demand the nature and cause of the

accusation against him, and to have a copy thereof; to meet the witnesses face to face,

and to have compulsory process to procure the attendance of witnesses in his behalf,

and a speedy public trial by an impartial jury of the county in which the offense is

alleged to have been committed * * *.” (Emphasis added.) See, State v. MacDonald,

,

(1976).

{¶39} R.C. §2945.71 codifies a defendant's right to a speedy trial and provides

the time within which a hearing or trial must be held for specific offenses.

{¶40} A person charged with a felony shall be brought to trial within 270 days

after the person's arrest or the service of summons. R.C. §2945.71(C)(2). A person

against whom one or more charges of different degrees, whether felonies,

misdemeanors, or combinations of felonies and misdemeanors, all of which arose out of Richland County, Case No. 16 CA 17 9

the same act or transaction, are pending shall be brought to trial on all of the charges

within the time period required for the highest degree of offense charged. R.C.

§2945.71(D). Each day an accused is held in jail shall be counted as 3 days. R.C.

§2945.71(E).Therefore, a defendant who is held in jail must be brought to trial within

ninety (90) days. However, certain events, as set forth in R.C. §2945.72, can extend the

ninety-day deadline.

{¶41} R.C. §2945.72 provides for a tolling of the time limitations under certain

circumstances,

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:

(A) Any period during which the accused is unavailable for hearing

or trial, by reason of other criminal proceedings against him, within or

outside the state, by reason of his confinement in another state, or by

reason of the pendency of extradition proceedings, provided that the

prosecution exercises reasonable diligence to secure his availability;

(B) Any period during which the accused is mentally incompetent to

stand trial or during which his mental competence to stand trial is being

determined, or any period during which the accused is physically

incapable of standing trial;

(C) Any period of delay necessitated by the accused's lack of

counsel, provided that such delay is not occasioned by any lack of

diligence in providing counsel to an indigent accused upon his request as Richland County, Case No. 16 CA 17 10

required by law;

(D) Any period of delay occasioned by the neglect or improper act

of the accused;

(E) Any period of delay necessitated by reason of a plea in bar or

abatement, motion, proceeding, or action made or instituted by the

accused;

(F) Any period of delay necessitated by a removal or change of

venue pursuant to law;

(G) Any period during which trial is stayed pursuant to an express

statutory requirement, or pursuant to an order of another court competent

to issue such order;

(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;

(I) Any period during which an appeal filed pursuant to section

2945.67 of the Revised Code is pending.

{¶42} “Upon motion made at or prior to the commencement of trial, a person

charged with an offense shall be discharged if he is not brought to trial within the time

required by sections 2945.71 and 2945.72 of the Revised Code.” R.C. §2945.73(B).

“[S]uch discharge is a bar to any further criminal proceedings against him based on the

same conduct.” R.C. §2945.73(D).

{¶43} A speedy-trial claim involves a mixed question of law and fact. State v.

Larkin, 5th Dist. Richland No. 2004–CA–103, 2005–Ohio–3122. As an appellate court, Richland County, Case No. 16 CA 17 11

we must accept as true any facts found by the trial court and supported by competent,

credible evidence. With regard to the legal issues, however, we apply a de novo

standard of review and thus freely review the trial court's application of the law to the

facts. Id. When reviewing the legal issues presented in a speedy-trial claim, we must

strictly construe the relevant statutes against the state. Brecksville v. Cook,

,

(1996).

{¶44} In the case at bar, Appellant was in jail between August 30, 2015 and

February 11, 2016, for a total of 165 days. However, we find that the time tolled for the

following events:

Appellant’s Demand Discovery October 28, 2015 – November 4, 2015

Appellant’s Motion for Continuance November 3, 2015 – January 7, 2016

Appellant’s Motion for Discharge January 5, 2016 – February 9, 2016

Trial court’s sua sponte continuance January 7, 2016 – February 11, 2016

{¶45} Therefore, the time between October 28, 2015 and February 11, 2016,

totaling 106 days, tolled. We therefore find only 59 of the allowable 90 days chargeable

against the State.

{¶46} Accordingly, Appellant was tried within the 270–day requirement set forth

in R.C. §2945.71(C)(2).

{¶47} Based on the foregoing, we find Appellant's First Assignment of Error not

well-taken and hereby overrule same.

II.

{¶48} In his Second Assignment of Error, Appellant argues that the trial court

erred in failing to merge his convictions on Count Two Domestic Violence and Count Richland County, Case No. 16 CA 17 12

Three Felonious Assault, claiming the counts are allied offenses of similar import. We

disagree.

{¶49} R.C. §2941.25 reads:

(A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant

may be convicted of only one.

(B) Where the defendant's conduct constitutes two or more offenses

of dissimilar import, or where his conduct results in two or more offenses of

the same or similar kind committed separately or with a separate animus

as to each, the indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of them.

{¶50} In State v. Johnson,

,

, 2010–Ohio–

6314, the Ohio Supreme Court held: “When determining whether two offenses are allied

offenses of similar import subject to merger under R.C. 2941.25, the conduct of the

accused must be considered.”

at the syllabus. To determine whether offenses are

allied offenses of similar import under R.C. 2941.25(A), the question is whether it is

possible to commit one offense and commit the other with the same conduct, not

whether it is possible to commit one without committing the other. Id. at ¶ 48. If the

multiple offenses can be committed by the same conduct, then the court must

determine whether the offenses were committed by the same conduct. Id. at ¶ 49. If the

answer to both questions is yes, then the offenses are allied and must be merged. Id. at

¶ 50. However, if the court determines that the commission of one offense will never Richland County, Case No. 16 CA 17 13

result in the commission of the other, or if the offenses are committed separately, or if

the defendant has a separate animus for each offense, then the offenses will not merge,

according to R.C. 2941.25(B). Id. at ¶ 51.

{¶51} The Ohio Supreme Court in State v. Ruff,

,

, 2015–Ohio–995, addressed the issue of allied offenses, determining the analysis

set forth in Johnson to be incomplete:

{¶52} When the defendant's conduct constitutes a single offense, the defendant

may be convicted and punished only for that offense. When the conduct supports more

than one offense, however, a court must conduct an analysis of allied offenses of similar

import to determine whether the offenses merge or whether the defendant may be

convicted of separate offenses. R.C. §2941.25(B).

{¶53} A trial court and the reviewing court on appeal when considering whether

there are allied offenses that merge into a single conviction under R.C. §2941.25(A)

must first take into account the conduct of the defendant. In other words, how were the

offenses committed? If any of the following is true, the offenses cannot merge and the

defendant may be convicted and sentenced for multiple offenses: (1) the offenses are

dissimilar in import or significance - in other words, each offense caused separate,

identifiable harm, (2) the offenses were committed separately, and (3) the offenses were

committed with separate animus or motivation.

{¶54} At its heart, the allied-offense analysis is dependent upon the facts of a

case because R.C. §2941.25 focuses on the defendant's conduct. The evidence at trial

or during a plea or sentencing hearing will reveal whether the offenses have similar

import. When a defendant's conduct victimizes more than one person, the harm for Richland County, Case No. 16 CA 17 14

each person is separate and distinct, and therefore, the defendant can be convicted of

multiple counts. Also, a defendant's conduct that constitutes two or more offenses

against a single victim can support multiple convictions if the harm that results from

each offense is separate and identifiable from the harm of the other offense. We

therefore hold that two or more offenses of dissimilar import exist within the meaning of

R.C. §2941.25(B) when the defendant's conduct constitutes offenses involving separate

victims or if the harm that results from each offense is separate and identifiable. Id. at ¶

24–26.

{¶55} In the case sub judice, the testimony presented at trial demonstrates that

J.J. suffered separate harm as a result of the felonious assault and domestic violence

offenses. Appellant shoved J.J. to the ground, injuring his arm, when he attempted to

intervene in the argument between Appellant and M.T., which was the basis for the

domestic violence charge. The felonious assault count was based on Appellant’s

actions of punching J.J. in the face and knocking out one of his teeth after J.J. called the

police.

{¶56} We find that the two offenses charged two separate acts, which occurred

at two separate times, resulting in two separate injuries. The two assaults were also

brought on by two different triggering events: the first from intervening in the argument

between appellant and M.T. and the second for calling the police. Richland County, Case No. 16 CA 17 15

{¶57} We find, the record demonstrates J.J. suffered separate harm as a result

of the commission of the domestic violence charge and the felonious assault charge;

therefore, the trial court did not err in not merging Appellant's convictions.

{¶58} For the foregoing reasons, the judgment of the Court of Common Pleas of

Richland County, Ohio, is affirmed.

By: Wise, J.

Farmer, P.J., and

Hoffman, J., concur.

JWW/d 0830