[Cite as State v. Fliger,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 2019 CA 0063 : JASON E. FLIGER : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2018 CR 0957

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: February 28, 2020

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

GARY BISHOP JAMES L. BLUNT, II RICHLAND COUNTY PROSECUTOR 3954 Industrial Parkway Dr. Shelby, OH 44875 JOSEPH C. SNYDER 38 South Park Street Mansfield, OH 44902 Richland County, Case No. 2019 CA 0063 2

Delaney, J.

{¶1} Defendant-Appellant Jason E. Fliger appeals his conviction and sentence

by the Richland County Court of Common Pleas. Plaintiff-Appellee is the State of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} Defendant-Appellant Jason E. Fliger was arrested on October 5, 2018.

Fliger failed to post bond and was placed into the custody of the Richland County Jail.

{¶3} On November 9, 2018, Fliger was indicted by the Richland County Grand

Jury on three counts: (1) Failure to Comply with Order or Signal of Police Officer, a third-

degree felony in violation of R.C. 2921.331(B) and (C)(5)(a)(ii); (2) Receiving Stolen

Property, a fourth-degree felony in violation of R.C. 2913.51(A) and (C); and (3) Failure

to Comply with Order or Signal of Police Officer, a fourth-degree felony in violation of R.C.

2921.331(B) and (C)(4). Fliger entered a plea of not guilty and the matter was set for jury

trial on March 25, 2019.

{¶4} On March 27, 2019, the trial court filed a judgment entry continuing Fliger’s

jury trial. The judgment entry stated:

It is hereby ordered that the jury trial of this case is continued from March

25, 2019 because the case of State of Ohio v. Khairi Bond, Case No. 2018

CR 366 proceeded to trial. Time is tolled for speedy trial purposes until the

next available trial date.

The jury trial was scheduled for June 10, 2019.

{¶5} On June 6, 2019, Fliger filed a Motion to Dismiss, raising a speedy trial

argument. Fliger stated he was arrested on October 5, 2018 and had been in custody

since his arrest. When the trial court continued his trial date to June 10, 2019, Fliger Richland County, Case No. 2019 CA 0063 3

argued his trial was beyond the 270-day requirement of R.C. 2945.71(C). The State

responded to the motion, arguing Fliger did not consider the statutory tolling of time, such

as discovery. The State further argued the speedy trial time was tolled by the continuance

of his jury trial due to the precedence of an older criminal case with more serious charges

as stated in the March 27, 2019 judgment entry.

{¶6} Prior to the start of the jury trial, the trial court heard the parties on Fliger’s

motion to dismiss. At the hearing, Fliger argued the trial court’s March 27, 2019 judgment

entry was insufficient to establish the reasonableness of the continuance because the

entry did not state a specific new trial date. (T. 5). The trial court asked defense counsel

whether the requirement was 90 or 270 days because Fliger was in custody on multiple

charges from other jurisdictions. (T. 5). Defense counsel stated he was unaware that any

other jurisdiction had a holder on Fliger. (T. 6). The State presented evidence that while

Fliger was being held on the charges in the present case, he was also being held on

multiple charges from other jurisdictions, therefore the day count was one-to-one. (T. 6,

8-9). The State also argued there were tolling events, including discovery for 52 days. (T.

6). The State argued that with the tolling events, multiple charges from different

jurisdictions, and the one-to-one count, the days were 159 out of the 270. (T. 7). The trial

court denied Fliger’s motion to dismiss and the jury trial proceeded. The following facts

were adduced at trial.

{¶7} On October 5, 2018, Sergeant Cody Baker with the Shelby Police

Department received a call at 6:23 a.m. about a vehicle parked on the street that had its

lights off but had been running for some time. When he responded to the call, Sergeant

Baker found a GMC Envoy with dealer plates. He approached the car and observed Richland County, Case No. 2019 CA 0063 4

Defendant-Appellant Jason E. Fliger sitting on the seat. Sergeant Baker recognized Fliger

from prior interactions and knew Fliger had a tendency to flee. He also knew Fliger had

warrants on pending cases in at least one jurisdiction.

{¶8} He attempted to open the car door and Fliger woke up. Sergeant Baker

announced himself as law enforcement and Fliger sped off in the truck. Sergeant Baker

gave chase in his police cruiser, reaching speeds of 92 mph but he could not catch up to

Fliger, whom he estimated was driving about 100 mph.

{¶9} Sergeant Baker pursued Fliger when Fliger pulled off the roadway to a

plowed farm field. In the farm field, he was able to keep up with Fliger until Fliger drove

into a corn field. The officer broke off the pursuit because he could not see past the corn.

He advised dispatch of Fliger’s location.

{¶10} Fliger drove until the truck came to rest in a private culvert on the farm

property. The owner of the property saw Fliger’s vehicle in the ditch and asked Fliger how

he got there. Fliger told him he was not sure and said he had been drinking. The farm

owner offered to help him get the truck out of the ditch, returned home to call the police,

and get his shotgun. The farm owner spoke with Fliger until the police arrived. Fliger then

ran off on foot.

{¶11} The Ohio State Highway Patrol, Ontario Police, Shelby Police Department,

and Richland County Sheriff’s Department arrived on the scene to assist in locating Fliger.

Sergeant Ryan Randall of the Ohio State Highway Patrol observed Fliger walking in the

woods. Fliger saw Sergeant Randall and he turned to walk away. The police officer

ordered Fliger to stop, Fliger surrendered, and he was taken into custody. Richland County, Case No. 2019 CA 0063 5

{¶12} Fliger testified at trial. He stated that when Sergeant Baker came to the door

of the truck, he was startled by yelling and a light in his face. He took off in the truck

because he thought someone was coming after him. He denied hearing any sirens or

seeing any lights.

{¶13} The State asked if Fliger was under the influence of drugs on that day, which

Fliger denied. As rebuttal, the State attempted to introduce the body cam video footage

of Fliger’s arrest taken by Captain Zehner of the Richland County Sheriff’s Department.

Fliger objected. During a side bar, the parties discussed the admission of the body cam

footage. Fliger objected to the use of the body cam footage because it showed Fliger and

Captain Zehner discussing other crimes allegedly committed by Fliger. During Fliger’s

testimony, he stated he did not know that he was being pursued by the police and that he

was wanted by the police. The State contended the footage demonstrated Fliger’s motive

or intent, lack of mistake, and other elements of the charges. The trial court watched the

footage outside the presence of the jury and determined it could be used as rebuttal. The

footage showed a discussion about other charges, but the trial court found the discussion

went to the issue of willfulness of the pursuit. The footage also rebutted Fliger’s testimony

that he did not know he was being pursed, which went to the element of intent. Finally,

there was discussion about whether Fliger knew the truck he was driving was stolen –

another element the State was required to prove. The trial court held the body cam

footage was not to be used pursuant to Evid.R. 404(B), but to go towards the elements

of pursuit and receiving stolen property.

{¶14} The State recalled Captain Zehner and introduced State Exhibit 12, the

body cam footage. The trial court then gave the jury a limiting instruction: Richland County, Case No. 2019 CA 0063 6

He’s only on trial here for fleeing and eluding and receiving stolen property.

The prosecutor is allowed to put on evidence relating to knowledge and

intent, knowledge regarding the failure to comply with the order or signal

of a police office. So you’re not allowed to say someone did something bad

at one point and, therefore, they must have done something bad in this

case. However, one of the issues in this trial is Mr. Fliger’s knowledge and

Mr. Fliger’s intent, so for those reasons you’re allowed to consider this

information, but not to say, well, he did something wrong before, he must

have done something wrong this time. However, it would be germane to

what his intent was regarding the failure to comply with the order or signal

of a police officer and what his knowledge was relating to the receiving

stolen property. That’s why it’s coming in. So the limiting instruction is that

you can’t say, well, somebody did something bad one time and then they

must have done something bad this time. However, this becomes relevant

because it goes to intent and knowledge of Mr. Fliger, so that’s why I am

allowing it.

(T. 449-450).

{¶15} Ultimately, the jury found Fliger guilty of (1) Failure to Comply with Order or

Signal of Police Officer, a third-degree felony in violation of R.C. 2921.331(B) and

(C)(5)(a)(ii) and (3) Failure to Comply with Order or Signal of Police Officer, first-degree

misdemeanor in violation of R.C. 2921.331(B). The jury found Fliger not guilty of

Receiving Stolen Property. Richland County, Case No. 2019 CA 0063 7

{¶16} The trial court merged Counts One and Three and sentenced Fliger to 30

months in prison via a sentencing entry filed on June 18, 2019. It is from this sentencing

entry Fliger now appeals.

ASSIGNMENTS OF ERROR

{¶17} Fliger raises two Assignments of Error:

{¶18} “I. WHETHER THE TRIAL COURT ERRED BY FAILING TO DISMISS THE

CASE FOR NOT AFFORDING THE DEFENDANT A TRIAL WITHIN THE STATUTORY

TIME LIMIT.

{¶19} “II. WHETHER THE TRIAL COURT ERRED BY ALLOWING THE POLICE

BODY CAMERA TO BE HEARD BY THE JURY, PURSUANT TO RULE OF EVIDENCE

404(B).”

ANALYSIS

I. Speedy Trial

{¶20} Fliger contends in his first Assignment of Error that the trial court erred when

it denied his motion to dismiss the case based on a violation of his right to a speedy trial.

We disagree.

{¶21} Fliger’s motion to dismiss was premised upon an alleged violation of his

right to a speedy trial. Speedy-trial provisions are mandatory and are encompassed within

the Sixth Amendment to the United States Constitution. The availability of a speedy trial

to a person accused of a crime is a fundamental right made obligatory on the states

through the Fourteenth Amendment. State v. Ladd,

,

(1978). “The statutory speedy trial provisions, R.C. 2945.71 et seq., constitute a

rational effort to enforce the constitutional right to a public speedy trial of an accused Richland County, Case No. 2019 CA 0063 8

charged with the commission of a felony or a misdemeanor and shall be strictly enforced

by the courts of this state.” State v. Pachay,

,

, syllabus

(1980).

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

Hickinbotham, 5th Dist. Stark No. 2018CA000142,

,

,

¶ 26, citing State v. Jenkins, 5th Dist. Stark No. 2009-CA-00150,

, ¶ 31,

citing State v. Larkin, 5th Dist. Richland No. 2004-CA-103,

. As an

appellate court, 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.

{¶23} Pursuant to R.C. 2945.73, a person who is not brought to trial within the

proscribed time periods found in R.C. 2945.71 and R.C. 2945.72 “shall be discharged”

and further criminal proceedings based on the same conduct are barred. Fliger was

arrested on October 5, 2018 and on November 9, 2018, indicted on three felonies. R.C.

2945.71(C)(2) states that a person charged with a felony shall be brought to trial within

270 days after the person’s arrest. Fliger argues that pursuant to R.C. 2945.71(E), for the

purposes of computing time under R.C. 2945.71(C), each day Fliger was held in jail in

lieu of bail on the pending charge was to be counted as three days. The State contended

at the hearing that Fliger was in jail before trial for 159 days, inclusive of tolling events. In

his appeal, Fliger does not dispute that he was in jail for 159 days. Fliger argues that

pursuant to the triple count, Fliger was in jail for 477 days (159 days x 3) before trial, in

violation of R.C. 2945.71(C)(2). Richland County, Case No. 2019 CA 0063 9

{¶24} Fliger cannot benefit from the “triple-count provision” under R.C. 2945.71(E)

when he was held in jail on other charges. State v. Dahms, 3rd Dist. Seneca No. 13-16-

16,

, ¶ 104 citing State v. Stephens, 9th Dist. Summit No. 26516, 2013–

Ohio–2223, ¶ 12, citing State v. Skorvanek, 9th Dist. Lorain No. 08CA009399, 2009–

Ohio–3924, ¶ 11, citing State v. MacDonald,

(1976), paragraph one of

the syllabus. See also State v. Brown,

, 479–480 (1992). “Instead, the

270–day time limit contained in R.C. 2945.71(C)(2) applies.” Stephens at ¶ 12, citing State

v. Richter, 9th Dist. Summit No. C.A. NO. 11799,

(Feb. 13, 1985) and

. At the hearing on the motion to dismiss, the State presented

evidence that while Fliger was held in the Richland County Jail on the charges in the

within matter, Fliger was also being held on outstanding charges from multiple

jurisdictions, including the Shelby Municipal Court and Mansfield Municipal Court. The

trial court stated it also conducted research into Fliger’s motion to dismiss and determined

that Fliger was being held on warrants from multiple jurisdictions, at least through April

27, 2019. The trial court recited at least ten pending criminal actions from other

jurisdictions. (T. 8-9). At the hearing, defense counsel acknowledged he was not aware

that Fliger was also being held on charges from other jurisdictions when he filed the

motion to dismiss for a speedy trial violation.

{¶25} Fliger contends on appeal the State failed to establish that Fliger was being

held on multiple charges. We disagree with Fliger’s characterization of the evidence.

Upon our review of the trial court’s denial of the speedy-trial claim, we must accept as

true any facts found by the trial court and supported by competent, credible evidence. We

find there was competent, credible evidence in the record that Fliger was being held in Richland County, Case No. 2019 CA 0063 10

jail on other charges arising out of different transactions with a different litigation history.

See State v. Madden, 10th Dist. Franklin No. 04AP–1228, 2005–Ohio–4281, ¶ 29–30,

citing State v. Parsley,

,

(10th Dist. 1993).

{¶26} Fliger next argues the trial court’s March 27, 2019 judgment entry

continuing Fliger’s jury trial was insufficient to extend his speedy trial time. R.C. 2945.72

lists a number of factors that permissibly extend speedy-trial time relative to the general

speedy-trial statute, R.C. 2945.71. R.C. 2945.72(H) states, “[t]he time within which the

accused must be brought to trial, or, in the case of a felony, to preliminary hearing and

trial, may be extended only the following: * * * [t]he 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.” R.C. 2945.72 permits the trial court to extend

speedy trial time as long as the length of time is reasonable and the reason for the

continuance is indicated in the judgment entry. “[W]here the trial record affirmatively

demonstrates the necessity for a continuance and the reasonableness thereof, such a

continuance will be upheld.” State v. Myers,

,

, ¶ 62.

{¶27} The Fourth District Court of Appeals noted in State v. Carr, 4th Dist. Ross

No. 12CA3358,

,

, ¶ 31:

“ ‘Ideally, “[w]hen sua sponte granting a continuance under R.C.

2945.72(H), the trial court must enter the order of continuance and the

reasons therefor by journal entry prior to the expiration of the time limit

prescribed in R.C. 2945.71 for bringing a defendant to trial.” ’ State v.

Ramey,

,

,

, ¶ 32,

quoting State v. Mincy,

,

(1982), syllabus. Richland County, Case No. 2019 CA 0063 11

However, the Supreme Court of Ohio has ‘recognized that an appellate

court may affirm a conviction challenged on speedy-trial grounds even if the

trial court did not expressly enumerate any reasons justifying the delay

when the reasonableness of the continuance is otherwise affirmatively

demonstrated by the record.’ Ramey at ¶ 33. For the continuance to toll

speedy trial time, ‘[t]he record must reflect that the continuance was

“reasonable in both purpose and length.” ’ State v. Martin,

,

(1978), quoting State v. Lee,

,

(1976).”

State v. Horsley, 4th Dist. No. 16CA3787,

,

,

, ¶ 32, appeal not allowed,

,

,

,

, ¶ 32 (2018)

{¶28} At the hearing, the trial court acknowledged Fliger’s argument as to the

continuance of his trial date from March 25, 2019. (T. 9). The trial court stated that on

March 25, 2019, there were ten or eleven criminal cases set for trial, including Fliger’s,

and the oldest case with the most serious charges was State of Ohio v. Khairi Bond, Case

No. 2018 CR 366. (T. 9). The next available trial date was June 10, 2019. (T. 9). Based

on this record, we find the trial court’s continuance of Fliger’s jury trial was reasonable in

both purpose and length.

{¶29} Fliger’s first Assignment of Error is overruled. Richland County, Case No. 2019 CA 0063 12

II. Evid.R. 404(B)

{¶30} In his second Assignment of Error, Fliger contends the trial court abused its

discretion when it permitted the State to introduce the body cam footage taken by Captain

Zehner. We disagree.

{¶31} “[A] trial court is vested with broad discretion in determining the admissibility

of evidence in any particular case, so long as such discretion is exercised in line with the

rules of procedure and evidence.” Westfield Ins. Group v. Silco Fire & Sec., 5th Dist. Stark

No. 2018CA00122,

,

, ¶ 52 citing Huth v. Kus, 5th Dist.

No. 2017 AP 06 0015,

,

,

, ¶ 30 quoting

Rigby v. Lake Cty.,

,

(1991). Fliger argues the

body cam footage was admitted in violation of Evid.R. 404(B). Evid. R. 404(B) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith. It

may, however, be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident. In criminal cases, the proponent of evidence to be

offered under this rule shall provide reasonable notice in advance of trial,

or during trial if the court excuses pretrial notice on good cause shown, of

the general nature of any such evidence it intends to introduce at trial.

{¶32} During his testimony, Fliger denied knowing he was being chased by the

police, that he had outstanding warrants for his arrest, or that he told the arresting officer

that drugs may have been the blame for his actions on October 5, 2018. In order to rebut

Fliger’s testimony, the State introduced the body cam footage taken by Captain Zehner Richland County, Case No. 2019 CA 0063 13

during Fliger’s arrest on October 5, 2018. Fliger objected to the admission of the footage

and prior to its admission, the trial court reviewed the footage.

{¶33} Fliger was charged Failure to Comply with Order or Signal of Police Officer

in violation of R.C. 2921.331(B), (C)(4), and (C)(5(a)(ii). The statutes reads, “[n]o person

shall operate a motor vehicle so as willfully to elude or flee a police officer after receiving

a visible or audible signal from a police officer to bring the person's motor vehicle to a

stop. * * * Except as provided in division (C)(5) of this section, a violation of division (B)

of this section is a felony of the fourth degree if the jury or judge as trier of fact finds by

proof beyond a reasonable doubt that, in committing the offense, the offender was fleeing

immediately after the commission of a felony. * * * A violation of division (B) of this section

is a felony of the third degree if the jury or judge as trier of fact finds any of the following

by proof beyond a reasonable doubt: * * * The operation of the motor vehicle by the

offender caused a substantial risk of serious physical harm to persons or property.” Fliger

was also charged with Receiving Stolen Property, in violation of R.C. 2913.51(A) and (C).

The statute reads,

(A) No person shall receive, retain, or dispose of property of another

knowing or having reasonable cause to believe that the property has been

obtained through commission of a theft offense.

***

(C) Whoever violates this section is guilty of receiving stolen property.

Except as otherwise provided in this division or division (D) of this section,

receiving stolen property is a misdemeanor of the first degree. If the value

of the property involved is one thousand dollars or more and is less than Richland County, Case No. 2019 CA 0063 14

seven thousand five hundred dollars, if the property involved is any of the

property listed in section 2913.71 of the Revised Code, receiving stolen

property is a felony of the fifth degree. If the property involved is a motor

vehicle, as defined in section 4501.01 of the Revised Code, if the property

involved is a dangerous drug, as defined in section 4729.01 of the Revised

Code, if the value of the property involved is seven thousand five hundred

dollars or more and is less than one hundred fifty thousand dollars, or if the

property involved is a firearm or dangerous ordnance, as defined in section

2923.11 of the Revised Code, receiving stolen property is a felony of the

fourth degree. If the value of the property involved is one hundred fifty

thousand dollars or more, receiving stolen property is a felony of the third

degree.

The trial court found the Captain’s questions and Fliger’s responses as to prior crimes

rebutted Fliger’s testimony and demonstrated the elements of motive and intent for fleeing

and eluding the police and receiving stolen property.

{¶34} The trial court acknowledged the implication of the body cam footage on the

prohibitions of Evid.R. 404(B) and gave the jury a limiting instruction as to its duty when

interpreting the body cam footage. The jury is presumed to follow the instructions of the

trial court. MCM Home Builders, LLC v. Sheehan, 5th Dist. Delaware No. 18 CAE 09

0074,

,

, ¶ 48 citing Pang v. Minch,

,

(1990), paragraph four of the syllabus.

{¶35} We find no abuse of the discretion to permit the admission of the body cam

footage for rebuttal purposes and to establish the elements of the charged offenses. Richland County, Case No. 2019 CA 0063 15

Further, the trial court provided the jury with a limiting instruction which we must presume

the jury followed.

{¶36} Fliger’s second Assignment of Error is overruled.

CONCLUSION

{¶37} The judgment of the Richland County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Baldwin, J., concur.