[Cite as State v. Mathias,

.]

COURT OF APPEALS MORROW COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 2020CA0001 : DARRELL L. MATHIAS : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Morrow County Court of Common Pleas, Case No. 2019 CR 0082

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: February 16, 2021

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

CHARLES S. HOWLAND R. JESSICA MANUNGO MORROW COUNTY PROSECUTOR ASST. STATE PUBLIC DEFENDER 250 East Broad St., Suite 1400 DAVID HOMER Columbus, OH 43215 60 East High Street Mt. Gilead, OH 43338 Morrow County, Case No. 2020CA0001 2

Delaney, J.

{¶1} Defendant-Appellant Darrell L. Mathias appeals his conviction and

sentence by the Morrow County Court of Common Pleas. Plaintiff-Appellee is the State

of Ohio.

FACTS AND PROCEDURAL HISTORY

The Stop

{¶2} On March 2, 2019, while stopped at a Marathon gas station in Morrow

County, Sheriff’s Deputy Joseph Delanis ran the license plate of a car stopped at the gas

station. Dispatch informed him the registered owner of the car was a woman named

Jennifer Marcum and she had an active warrant out of Franklin County.

{¶3} Deputy Delanis followed the car onto southbound I-71 and effectuated a

traffic stop when he determined a woman was driving the car. After the car stopped on

the side of the highway, Deputy Delanis approached and asked the woman driver for

identification. A man was sitting in the front passenger seat and was identified as

Defendant-Appellant Darrell L. Mathias. The woman identified herself as Michelle Purcell

and gave the deputy a Social Security number. Deputy Delanis returned to his cruiser to

run the number and speak to dispatch. While he was in his cruiser, he noticed the man in

the passenger seat fidgeting in his seat.

{¶4} Deputy Delanis ran the Social Security number and it did not return. After

receiving the false Social Security number, Deputy Delanis told the woman to exit the

vehicle. He asked the woman about the differences in eye color and height listed in the

BMV records for Michelle Purcell and Jennifer Marcum. The woman admitted that she Morrow County, Case No. 2020CA0001 3

was Jennifer Marcum. She stated that she and her husband, Mathias, were driving to a

motel in Morrow County after visiting their son in the hospital.

{¶5} Deputy Delanis placed Marcum under arrest for her warrant and for

falsification. Dispatch advised that Mathias’s driver’s license was suspended. Deputy

James Coulter of the Morrow County Sheriff’s Department and Trooper Jacob Dickerson

of the Ohio State Highway Patrol had arrived on the scene to assist. Deputy Coulter had

his K-9 with him, and he ran the dog around the car, but the dog did not give a positive

alert to the vehicle. The officers determined that Marcum’s vehicle needed to be towed

because Marcum was under arrest and Mathias had a suspended license. Before the

vehicle was towed, the officers were required to conduct an inventory search of the

vehicle.

{¶6} Deputy Coulter conducted the vehicle inventory. There was an armrest in

the center console area of the car. Deputy Coulter flipped up the armrest and found a cell

phone. Next to the cell phone, he found a crystalline substance that appeared to be

methamphetamine. Deputy Coulter next found a glass pipe similar to a meth pipe in

between the passenger seat and center seat area. He reached under the passenger seat

and found a locked box. The officers asked Marcum and Mathias who owned the locked

box and both denied ownership. Neither Marcum nor Mathias admitted to having a key to

the locked box. Mathias and Marcum denied any knowledge of anything illegal in the

vehicle.

{¶7} Mathias and Marcum stated they did not know what was in the locked box.

Trooper Dickerson pulled the box open. The box contained a set of scales, a weight to

test the scales, three Suboxone strips, a small glass pipe, pieces of tin foil, a plastic Morrow County, Case No. 2020CA0001 4

baggie containing a white crystalline substance, two baggies containing a black

substance, a plastic baggie containing a blue crystalline powder, a hotel room key card,

and two $100 bills.

{¶8} While the cell phone was in the officers’ possession during the inventory, a

notification for a Facebook Messenger message appeared on the screen. Deputy Coulter

was able to read the message without unlocking the cell phone. The message was from

Hank Smith and it said, “Bro, you are just as likely to go to jail up there, if not more so. As

long as you are in freeways you are better off. Man, I’m so salty, Bro. I’m out and needed

to get that half from you.” Mathias admitted he owned the cell phone, but he said that

Marcum also used the cell phone.

{¶9} Mathias was subsequently arrested. The box and items from the car were

transferred to Deputy Delanis and placed into evidence at the Sheriff’s Office.

{¶10} The items found in the car and the box were submitted to the Ohio Bureau

of Criminal Investigation. It was determined the substances found in the car and the box

were 0.12 grams of methamphetamine, 21.58 grams of methamphetamine, and 0.38

grams of heroin.

The Road to Trial

{¶11} On April 25, 2019, the Morrow County Grand Jury indicted Mathias on four

counts: (1) complicity to aggravated trafficking in drugs (methamphetamine), a second-

degree felony in violation of R.C. 2923.03 and 2925.03(A)(2) and (c)(1)(d); (2) complicity

to aggravated possession of drugs (methamphetamine), a second-degree felony in

violation of R.C. 2923.03 and 2925.11(A) and (c)(1)(c); (3) complicity to aggravated

possession of drugs (heroin), a fifth-degree felony in violation of R.C. 2923.03 and Morrow County, Case No. 2020CA0001 5

2925.11(A) and (c)(6)(a); and (4) complicity to possession of drug paraphernalia, a fourth-

degree misdemeanor in violation of R.C. 2923.92 and 2925.14(c). A warrant for Mathias’s

arrest was issued on April 30, 2019.

{¶12} The Sheriff’s Return of Service Warrant upon Indictment or Information

shows that Mathias was arrested on May 7, 2019. He was held in the Morrow County

Correctional Facility.

{¶13} Mathias was arraigned on May 8, 2019. He entered a plea of not guilty to

all the charges. He did not waive his right to a speedy trial.

{¶14} Mathis filed his Demand for Discovery on May 8, 2019.

{¶15} On May 16, 2019, the State filed its Reply to Defendant’s Request for

Discovery and Demand for Reciprocal Discovery. The docket shows the State’s response

to discovery and reciprocal demand was the only filing made on May 16, 2019.

{¶16} On June 18, 2019, Mathias filed a Motion to Suppress. On June 25, 2019,

the trial court ordered the motion to suppress to be heard on August 9, 2019.

{¶17} Mathias filed a Motion for Bond Reconsideration on June 26, 2019. The

hearing was held on July 8, 2019 and a judgment entry was filed the same day. The trial

court found that Mathias had been in jail since May 7, 2019 and it released Mathias on

bond on July 8, 2019.

{¶18} The State filed a response to the Motion to Suppress on July 10, 2019.

{¶19} On July 31, 2019, the State filed a Motion to Revoke Bond. The trial court

set the matter for hearing on August 9, 2019. Also, on July 31, 2019, the State filed a

Supplemental Reply to Discovery and a Reciprocal Demand for Discovery. Morrow County, Case No. 2020CA0001 6

{¶20} On August 2, 2019, Mathias filed a Motion to Continue the suppression

hearing scheduled for August 9, 2019.

{¶21} The trial court filed a judgment entry on August 5, 2019 revoking Mathias’s

bond and issuing a warrant for his arrest. The judgment entry stated, “The time within

which to try this matter is hereby tolled.”

{¶22} The trial court held a motion hearing on August 9, 2019 and filed an entry

the same day. Mathias did not appear for the hearing and the trial court issued a warrant

for his arrest. The trial court stated the speedy trial time was tolled pending Mathias’s

arrest.

{¶23} Mathias was arrested on August 16, 2019 and held in the Morrow County

Correctional Facility. The trial court held a bond modification hearing on August 26, 2019.

By judgment entry filed on August 27, 2019, the trial court set Mathias’s bond to $50,000

cash or 10% surety. The matter was set for a pretrial and suppression motion hearing on

September 10, 2019 and jury trial on October 7, 2019.

{¶24} On September 5, 2019, the State filed a Motion to Continue the suppression

hearing due to the unavailability of a witness, Deputy Coulter. The trial court issued a

judgment entry on September 10, 2019 granting the motion to continue due to good cause

shown. The suppression hearing was continued to October 4, 2019. The trial court also

denied Mathias’s motion to be released on his own recognizance.

{¶25} The State filed a motion on September 20, 2019 to order the Morrow County

Sheriff to not release Mathias to any other agency. The trial court granted the motion on

September 24, 2019. Mathias also had criminal proceedings pending in Franklin County. Morrow County, Case No. 2020CA0001 7

{¶26} On October 2, 2019, the State filed a Motion to Continue the trial scheduled

for October 7, 2019. The jury commission had failed to issue summons for the jurors for

the October 7, 2019 jury trial.

{¶27} Mathias withdrew his Motion to Suppress on October 4, 2019.

{¶28} On October 7, 2019, the trial court granted the motion to continue the jury

trial. The jury trial was rescheduled to October 21, 2019.

{¶29} The State filed a Supplemental Reply to Mathias’s discovery request and a

demand for reciprocal discovery on October 18, 2019.

The Jury Trial

Motion to Dismiss

{¶30} The jury trial commenced on October 21, 2019. Before the start of the trial

and out of the presence of the jury, counsel for Mathias made an oral Motion to Dismiss

based on a violation of his right to a speedy trial. He argued that from the date of arrest

on May 1, 2019, to the date of trial on October 21, 2019, more than 270 days had passed.

(T. 98-99). The State argued that considering the tolling periods, 153 to 177 days had

passed. (T. 98).

{¶31} One of the issues affecting the calculation of dates was that simultaneous

to the Morrow County proceedings, Mathias also had pending criminal proceedings in

Franklin County. On August 6, 2019, while Mathias was released on bond from Morrow

County, Mathias was arrested in Franklin County. He had a Rule 4 hearing on August 7,

2019. (T. 98). Because of his arrest in Franklin County, Mathias did not attend the August

9, 2019 hearing in Morrow County and a warrant was issued for his arrest. Mathias was

arrested on August 16, 2019 and transferred to the Morrow County Correctional Facility. Morrow County, Case No. 2020CA0001 8

Mathias argued that while he had pending charges in Franklin County, he was never held

in the Franklin County case. (T. 100). When he was held in the Morrow County

Correctional Facility, it was solely on the Morrow County charges. (T. 100).

{¶32} The trial court noted that raising the motion the day of trial put the trial court

at a disadvantage because it could only review the case file while on the bench. After

hearing the parties’ arguments, the trial court stated it was inclined to follow the State’s

representation as to the speedy trial time. (T. 99).

{¶33} On October 22, 2019, the trial court issued a written judgment entry denying

Mathias’ motion to dismiss. The trial court found the following:

The State of Ohio went through the time line from the date of arrest on May

7, 2019 to date of trial on October 21, 2019 and calculated time expired as

153 days calculated as follows:

1. May 7, 2019 to May 8, 2019 – credit for 6 days (3 days for 1 credit) since

he was incarcerated;

2. May 9, 2019 to May 16, 2019 – time tolled for discovery;

3. May 17, 2019 to June 17, 2019 – credit for 96 days (3 days credit for 1)

since defendant was incarcerated;

4. June 18, 2019 to October 3, 2019 – time tolled since the Defendant filed

a Motion to Suppress on June 18, 2019 and withdrew it on October 3, 2019;

5. October 3, 2019 to October 21, 2019 – credit for 51 days (3 days credit

for 1) since the defendant was incarcerated. Morrow County, Case No. 2020CA0001 9

Evidence at Trial

{¶34} At trial, the State presented the testimony of the Morrow County Sheriff

Deputies Delanis and Coulter and Ohio State Highway Patrol Trooper Dickerson

describing the stop and the evidence found in the car.

{¶35} The State also presented Jennifer Marcum as a witness. Marcum was

originally indicted on four counts: (1) complicity to aggravated trafficking in drugs, a

second-degree felony; (2) aggravated possession of drugs, a second-degree felony; (3)

aggravated possession of drugs, a fifth-degree felony; and (4) complicity to possession

of drug paraphernalia, a fourth-degree misdemeanor. On October 16, 2019, Marcum

entered into a plea agreement with the State wherein the State dismissed three charges

and Marcum entered a guilty plea to complicity to aggravated possession of drugs, a

felony of the third degree. (T. 330). The State recommended probation and the trial court

later sentenced her to 180 days in jail, with 92 days credit, to be served concurrently with

a sentence based on a conviction in Delaware County. Marcum testified that part of the

plea agreement was that she testified at Mathias’s trial, but she was going to testify

against him anyway. (T. 319). Marcum had a prior criminal history of felony drug

convictions, receiving stolen property, and identity theft. (T. 331).

{¶36} Marcum testified she was in a romantic relationship with Mathias in

February 2019. (T. 312). During January and February 2019, Marcum was consistently

under the influence of methamphetamines. (T. 315). Before they were pulled over, she

and Mathias had not slept for days due to methamphetamine usage. (T. 322). They did

not have a permanent residence and Mathias financially supported Marcum. She never

witnessed Mathias sell drugs, but she saw him furnish heroin, methamphetamine, and Morrow County, Case No. 2020CA0001 10

Suboxone to people so she and Mathias could stay at their home. (T. 340). Marcum did

not use heroin because she did not use needles; she was a snorter. (T. 336).

{¶37} Marcum previously observed the locked box in Mathias’s possession. She

testified that they had stopped at the house of Mathias’s friend. The friend had a bag

containing items that belonged to Mathias and his ex-girlfriend. (T. 323). The locked box

was inside the bag. (T. 323). When Mathias opened the box in Marcum’s presence, she

saw that the box was filled with needles and heroin – drug instruments she said the ex-

girlfriend used. (T. 317).

{¶38} On March 2, 2019, she and Mathias were going to the Motel 6 in Mount

Gilead when she stopped at the Marathon gas station. She was then pulled over on I-71

by Deputy Coulter. (T. 313). She understood she was pulled over based on a warrant for

her arrest for charges of receiving stolen property and misuse of a credit card. (T. 314).

Mathias knew she had a warrant, and he gave Marcum the name and Social Security

number of the mother of his children to give to the police officer. (T. 315). Mathias told

her to say to the officer that they had a son in the hospital. (T. 320). She knew there was

a pipe in the car because they were both smoking off it and that there was a small package

of methamphetamine in the car, but she thought the package was in Mathias’s pocket.

(T. 316, 321). Marcum testified she did not know about the locked box under the front

passenger seat of the car until she was arrested by the Deputy. (T. 316). Marcum had

last seen Mathias with the box on March 2, 2019, but she did not know it was in the car.

Mathias always had access to the car. (T. 318).

{¶39} At the conclusion of the evidence, counsel for Mathias moved for a directed

verdict on all counts pursuant to Crim.R. 29. (T. 359). The trial court granted the motion Morrow County, Case No. 2020CA0001 11

to dismiss the charge of complicity to aggravated trafficking in drugs. It denied the motion

to dismiss the remaining charges. (T. 360-361).

{¶40} The jury found Mathias guilty of the remaining charges. (T. 403). The trial

court ordered a presentence investigation and set the matter for a sentencing hearing. (T.

404).

{¶41} The trial court held a sentencing hearing on December 11, 2019. The trial

court sentenced Mathias to four years in prison on Count Two, one year in prison on

Count Three, and 30 days on Count Four, all to be served concurrently with Count Two.

(Journal Entry of Sentence, Dec. 11, 2019).

{¶42} It is from this conviction and sentence that Mathias now appeals.

ASSIGNMENTS OF ERROR

{¶43} Mathias raises two Assignments of Error:

{¶44} “I. THE TRIAL COURT ERRED IN DENYING MR. MATHIAS’ MOTION TO

DISMISS THE CHARGES AGAINST HIM FOR A VIOLATION OF HIS SPEEDY TRIAL

RIGHTS UNDER R.C. 2945.71 AND R.C. 2945.73.

{¶45} “II. THE TRIAL COURT VIOLATED DARRELL MATHIAS’ RIGHTS TO DUE

PROCESS AND A FAIR TRIAL WHEN IT ENTERED A JUDGMENT OF CONVICTION

FOR COMPLICITY TO AGGRAVATED POSSESSION OF DRUGS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.”

ANALYSIS

I. SPEEDY TRIAL

{¶46} Mathias argues in his first Assignment of Error that the trial court erred when

it denied his motion to dismiss based on a violation of his right to a speedy trial. Upon our

review of the relevant dates and law, we disagree. Morrow County, Case No. 2020CA0001 12

Standard of Review

{¶47} 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 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).

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.

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

Wood, 5th Dist. Fairfield No. 2020 CA 00023,

,

, ¶¶ 19-20

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. We apply a de novo standard of review with regard to

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

strictly construe the relevant statutes against the State.

citing Brecksville v. Cook,

,

(1996); State v. Colon, 5th Dist. Stark No. 09-

CA-232,

, ¶12.

{¶49} R.C. 2945.71(C)(2) requires “[a] person against whom a charge of felony is

pending * * * be brought to trial within two hundred seventy days after his arrest.” Mathias Morrow County, Case No. 2020CA0001 13

contends he was not brought to trial within 270 days of his arrest. He argues that

considering the relevant dates and law, he was brought to trial in 354 days, which is in

contravention of the statutory speedy trial provisions. The State contends that depending

on this Court’s interpretation of the law, the speedy trial time can be calculated as either

1 day or 167 days between the date of arrest and commencement of trial.

Calculation of the Dates

{¶50} In his appellate brief, Mathias contends the trial court erred as to its

calculation of the speedy trial days pursuant to R.C. 2945.72. We examine the relevant

dates and utilize the record to confirm the dates Mathias and the State use in its

arguments as to whether Mathias was brought to trial within 270 days of his arrest.

Date of Arrest

{¶51} The first important date in calculating speedy trial time is the date Mathias

was arrested. The statutory time limits for speedy trial begin to run on the day after the

date of arrest or service of summons. State v. King, 5th Dist. Perry No. 17-CA-00009,

,

, ¶ 36 citing R.C. 2945.71(B)(1); State v. Steiner,

,

(9th Dist. 1991).

{¶52} The trial court issued the warrant upon indictment on April 30, 2019. In his

appellate brief, Mathias contends he was arrested on May 1, 2019. The trial court stated

in its judgment entry denying the motion to dismiss that Mathis was arrested on May 7,

2019. We have reviewed the record in this case and find the trial court was correct as to

the date of arrest. The Sheriff’s Return of Service Warrant upon Indictment or Information

shows that Mathias was arrested on May 7, 2019. After his arrest, Mathias was held in

the Morrow County Correctional Facility and arraigned on May 8, 2019. Morrow County, Case No. 2020CA0001 14

{¶53} In its October 22, 2019 judgment entry, the trial court correctly stated

Mathias was arrested on May 7, 2019. It calculated the speedy trial dates as “May 7, 2019

to May 8, 2019 – credit for 6 days (3 days for 1 credit) since he was incarcerated.”

(Judgment Entry, Oct. 22, 2019). As we stated above, however, the statutory time limits

for speedy trial begin to run on the day after the date of arrest. The trial court erred when

it counted May 7, 2019 as a speedy trial date. The trial court should only have counted

May 8, 2019 as a speedy trial date.

{¶54} R.C. 2945.71(E) provides “each day during which the accused is held in jail

in lieu of bail on the pending charge shall be counted as three days.” In State v. McDonald,

(1976), the Ohio Supreme Court held the triple count provision applies

“only to those defendants held in jail in lieu of bail solely on the pending charge.”

at

syllabus. The trial court correctly gave Mathias three-for-one credit because he was

incarcerated on May 7, 2019 and May 8, 2019, but the trial court should have only counted

May 8, 2019, the day after Mathias’s arrest. As such, Mathias was entitled to 3 days credit,

not 6 days credit.

Response to the Request for Reciprocal Discovery

{¶55} On May 8, 2019, Mathias filed a discovery motion. On May 16, 2019, the

State filed the State’s reply to Mathias’s discovery demand and a reciprocal demand for

discovery.

{¶56} When making his argument that he was brought to trial beyond 270 days of

his arrest, counsel for Mathias stated that Mathias filed the reply to the State’s request for

reciprocal discovery on May 16, 2019. (T. 97). In its October 22, 2019 judgment entry, the

trial court stated that time was tolled for discovery from May 9, 2019 to May 16, 2019. Morrow County, Case No. 2020CA0001 15

Mathias states in his appellate brief that his reply to the State’s demand for reciprocal

discovery was made on May 16, 2019. To demonstrate that he filed a reply to the State’s

demand for reciprocal discovery, Mathias cites the transcript of the trial wherein trial

counsel stated that he filed the response on May 16, 2019. (T. 97).

{¶57} The State contends Mathias is incorrect as to the date because he never

responded to the State’s request for reciprocal discovery. Upon our review of the record,

we agree. The only filing in the record on May 16, 2019 is the State’s reply to Mathias’s

discovery demand and a reciprocal demand for discovery. We have reviewed the entire

record and find that Mathias did not file a response to the State’s request for reciprocal

discovery.

{¶58} R.C. 2945.72 outlines circumstances that justify an extension of the

statutory speedy-trial time. In R.C. 2945.72(D), the statute reads:

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:

***

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

accused.”

{¶59} In State v. Palmer, the Ohio Supreme Court held that “the failure of a

criminal defendant to respond within a reasonable time to a prosecution request for

reciprocal discovery constitutes neglect that tolls the running of speedy-trial time pursuant

to R.C. 2945.72(D).”

,

,

, paragraph

one of syllabus. The criminal defendant in Palmer responded to the state’s reciprocal Morrow County, Case No. 2020CA0001 16

discovery request 60 days after the request. When the defendant filed a motion to dismiss

based on a violation of the speedy trial statute, the state responded that the speedy trial

time was tolled for 60 days for the defendant’s failure to respond to the reciprocal

discovery. Id. at ¶ 7. The trial court credited the state 30 days of the 60 days that had

expired between the state’s request for reciprocal discovery and the defendant’s

response. Id. The Supreme Court held it was the role of the trial court to determine the

date by which the defendant should have reasonably responded to a reciprocal discovery

request based on the totality of the facts and circumstances of the case, including the

time established for response by local rule, if applicable. Id. at ¶ 24.

{¶60} In this case, when the trial court calculated the relevant dates, it relied upon

Mathias’s assertion that he filed a response to the State’s reciprocal discovery request on

May 16, 2019. It found time was tolled for discovery from May 9, 2019 to May 16, 2019.

The trial court then gave Mathias credit for 96 days (three days credit for one) from May

17, 2019 to June 17, 2019, because Mathias was incarcerated during this time. This was

in error. Mathias did not respond to discovery and pursuant to R.C. 2945.72(D), his failure

to respond constitutes neglect that tolls the running of the speedy trial time. However,

based on our analysis below of the remaining dates, we find the trial court’s error as to

the response date to be harmless and we further find it is unnecessary to remand the

matter to the trial court for a determination of a reasonable response date.

Mathias’s Motion to Suppress

{¶61} Mathis filed a motion to suppress on June 18, 2019. Pursuant to R.C

2945.72(E), time is tolled for any period necessitated by reason of a motion made or

instituted by the accused. On June 25, 2019, the trial court scheduled the matter for an Morrow County, Case No. 2020CA0001 17

evidentiary hearing on August 9, 2019. Mathias was released on bond on July 8, 2019.

The State filed its response to the motion to suppress on July 10, 2019.

{¶62} Motions filed by an accused in a criminal prosecution toll the speedy trial

period only to the extent that the delay is reasonable and necessary for the court to rule

on the same. State v. Morgan, 5th Dist. Ashland No. 17-COA-008,

,

, ¶ 46 citing State v. Arrizola,

,

(3rd

Dist. 1992). In this case, Mathias’s intervening actions delayed the proceedings on the

motion to suppress. The August 9, 2019 evidentiary hearing did not go forward because

Mathias violated the conditions of his bond, which was revoked by the trial court on August

5, 2019 and a warrant was issued for his arrest. Mathias was arrested on August 16, 2019

and incarcerated.

{¶63} On August 27, 2019, the trial court continued the evidentiary hearing to

September 10, 2019. On September 5, 2019, the State moved to continue the evidentiary

hearing because Deputy Coulter, the officer who conducted the inventory search of the

vehicle, was unavailable for the hearing due to a prior scheduled training. The trial court

found good cause to continue the hearing to October 4, 2019 and tolled the time therein.

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 Morrow County, Case No. 2020CA0001 18

continuance and the reasonableness thereof, such a continuance will be upheld.” State

v. Fliger, 5th Dist. Richland No. 2019 CA 0063,

,

, ¶ 26

quoting State v. Myers,

,

.

{¶64} Mathias withdrew his motion to suppress on October 4, 2019.

{¶65} In its October 22, 2019 judgment entry, the trial court found that time was

tolled from June 18, 2019 to October 3, 2019, the date Mathias filed the motion to

suppress and the date Mathias withdrew the motion to suppress. We note the trial court

incorrectly stated that Mathias withdrew his motion to suppress on October 3, 2019. The

record shows Mathias filed his motion to withdraw the motion to suppress on October 4,

2019. We find the trial court’s finding to be supported by the relevant law. Time was tolled

from June 18, 2019 to October 4, 2019.

{¶66} While the motion to suppress was pending, Mathias was incarcerated from

August 16, 2019 to date of trial, October 21, 2019. In the October 22, 2019 judgment

entry, the trial court gave Mathias credit for 51 days (three days credit for one) from

October 3, 2019 to October 21, 2019.

No Speedy Trial Violation

{¶67} The State contends in its appellate brief that the trial court’s calculation of

time was in favor of Mathias, as there were other events that tolled the speedy trial time.

The State contends if we calculate the time based on Mathias’s failure to respond to

reciprocal discovery, the speedy trial time should be one day. If considering that Mathias

was in the Morrow County Correctional Facility while he was simultaneously being

prosecuted in Franklin County, the State argues Mathias should not be entitled to the

triple-count provision. The trial court gave Mathias the benefit of the triple-count provision Morrow County, Case No. 2020CA0001 19

in all its calculations. Finally, on October 2, 2019, the State filed a motion to continue the

trial date filed by the State because of a jury commission error, which the trial court found

reasonable and continued the trial from October 7, 2019 to October 21, 2019.

{¶68} Based on our review of the record as to the dates and the relevant law

applicable to those dates, we find the trial court committed harmless error in its

computation of dates when it calculated 153 speedy trial days, but its error was to the

benefit of Mathias. The trial court erred when it started the speedy trial clock the day of

Mathias’s arrest, found that Mathias responded to the request for reciprocal discovery,

and misidentified the day Mathias filed his withdrawal of his motion to suppress. If the trial

court had considered the failure to respond to the reciprocal discovery, the trial court could

have credited additional days to the State. Upon this record and the trial court’s

determination, we find the trial court did not err in denying the motion to dismiss and

overrule Mathias’s first Assignment of Error

II. MANIFEST WEIGHT OF THE EVIDENCE

{¶69} Mathias argues in his second Assignment of Error that his conviction for

complicity to aggravated possession of drugs was against the manifest weight of the

evidence. We disagree.

{¶70} The criminal manifest-weight-of-the-evidence standard was explained in

State v. Thompkins,

,

(1997), in which the Court

distinguished between “sufficiency of the evidence” and “manifest weight of the evidence,”

finding that these concepts differ both qualitatively and quantitatively.

. The

Court held that sufficiency of the evidence is a test of adequacy as to whether the

evidence is legally sufficient to support a verdict as a matter of law, but weight of the Morrow County, Case No. 2020CA0001 20

evidence addresses the evidence's effect of inducing belief.

at 386–387. “In other

words, a reviewing court asks whose evidence is more persuasive—the state's or the

defendant's?” State v. Wilson,

,

,

, ¶

25. The Court noted that although there may be sufficient evidence to support a judgment,

it could nevertheless be against the manifest weight of the evidence.

. “When a court of appeals reverses a judgment of a trial court on the basis that the

verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’

and disagrees with the factfinder's resolution of the conflicting testimony.”

citing Tibbs

v. Florida,

,

,

(1982).

{¶71} To evaluate a manifest-weight claim, a court must review the entire record,

weigh the evidence and all reasonable inferences, and consider the credibility of

witnesses. State v. McKelton,

,

,

. The court must decide whether “ ‘the jury clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed.’ ”

quoting State

v. Martin,

,

(1st Dist. 1983).

{¶72} In this case, Mathias was convicted of two counts of complicity to

aggravated possession of drugs (methamphetamine and heroin) in violation of R.C.

2923.03(A) and 2925.11(A). Mathias does not raise his conviction of possession of drug

paraphernalia. R.C. 2925.11(A) states that “No person shall knowingly obtain, possess,

or use a controlled substance or a controlled substance analog.” Complicity is defined by

R.C. 2923.03(A), which states:

(A) No person, acting with the kind of culpability required for the commission

of an offense, shall do any of the following: Morrow County, Case No. 2020CA0001 21

***

(2) Aid or abet another in committing the offense;

{¶73} Mathias first contends his conviction was against the manifest of the

evidence because Marcum’s testimony was self-serving. She entered into a plea

agreement with reduced charges in exchange for her testimony. Marcum, however, said

that she would have voluntarily testified against Mathias. (T. 319). She had a criminal

history involving prior drug convictions. Marcum testified, “I did plead guilty to trafficking

in drugs. You know what, I pled guilty to all of my stuff. I’m not going to sit here and waste

people’s time trying to pretend like I’m something I’m not.” (T. 328). The jury in this case

found Marcum’s testimony credible that she observed Mathias in possession of

methamphetamine and the locked box before they were stopped by the police on March

2, 2019.

{¶74} Mathias next argues the evidence presented in the case was uncertain and

unreliable. He states that Deputy Delanis could not remember the chain of events during

the stop, inventory search, and arrest. He states that his uncertainty made him an

unreliable witness. The evidence before the jury was that Deputy Delanis effectuated a

traffic stop based on Marcum’s outstanding warrant. After her arrest, Deputy Coulter

conducted an inventory search of the vehicle and found drugs and drug paraphernalia in

the car, including the locked box under the front passenger seat. The officer’s memory of

the order in which the events occurred during the arrest did not negate the evidence of

the drugs and drug paraphernalia discovered during the inventory search of the vehicle.

Mathias did not pursue the motion to suppress to question the constitutionality of the stop

or search. Morrow County, Case No. 2020CA0001 22

{¶75} Finally, Mathias contends that State failed to prove the locked box and

drugs within the locked box were connected to Mathias. Possession is defined as “having

control over a thing or substance, but may not be inferred solely from mere access to the

thing or substance through ownership or occupation of the premises upon which the thing

or substance is found.” R.C. 2925.01(K). However, possession may be actual or

constructive. State v. Taylor, 5th Dist. Richland No. 2019 CA 0117,

, ¶

22 citing State v. Garza, 5th Dist. Stark No. 2020CA00018,

, ¶ 16 citing

State v. Butler,

,

(1989).

{¶76} To establish constructive possession, the evidence must prove the

defendant was able to exercise dominion and control over the contraband. State v.

Wolery,

,

(1976). Dominion and control may be

proven by circumstantial evidence alone.

, citing State v. Trembly,

,

(8th Dist. 2000). Circumstantial evidence

establishing the defendant was located in very close proximity to the contraband may

show constructive possession. State v.

State v. Morales, 5th Dist. Licking

No. 2004 CA 68,

. “Establishment of ownership is not required.”

State v. Rastbichler, 2nd Dist. Montgomery No. 25753,

. The issue

of whether a person charged with drug possession knowingly possessed a controlled

substance “is to be determined from all the attendant facts and circumstances available.”

State v. Teamer,

,

(1998).

{¶77} Using all the attendant facts and circumstances available, we find the jury

did not lose its way when it found Mathias guilty of complicity for aggravated possession

of drugs. Marcum testified that she and Mathias were using the glass pipe and the small Morrow County, Case No. 2020CA0001 23

amount of methamphetamine found in the car on March 2, 2019. As to the locked box

and its contents, Marcum testified that she observed Mathias with the locked box prior to

March 2, 2019. The box contained heroin, methamphetamine, and Suboxone. Marcum

denied using heroin, but she saw Mathias give heroin to people in exchange for staying

in their home. When the Deputy Delanis pulled over the vehicle, Mathias was sitting in

the front passenger seat. The locked box was found under the front passenger seat.

{¶78} The jury was free to accept or reject any or all of the evidence offered by

the parties and assess the witnesses’ credibility. Indeed, the jurors need not believe all of

a witness’ testimony but may accept only portions of it as true. State v. McGregor, 5th

Dist. Ashland No. 15-COA-023,

,

. The jury clearly

believed the testimony of the State's witnesses and concluded Mathias was aware of the

glass pipe, small bag of methamphetamine, and the contents of the locked box as was

Marcum; therefore, he aided and abetted Marcum in possession of the drugs in question.

{¶79} Upon review of the entire record, including reading the entire transcript, we

find Mathias’s conviction was not against the manifest weight of the evidence.

{¶80} The second Assignment of Error is overruled. Morrow County, Case No. 2020CA0001 24

CONCLUSION

{¶81} The judgment of the Morrow County Court of Common Pleas is affirmed.

By: Delaney, J.,

Hoffman, P.J. and

Wise, John, J., concur.