[Cite as State v. Lovett,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29240 : v. : Trial Court Case No. 2020-CR-3360 : DEVION LOVETT : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 20th day of May, 2022.

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MATHIAS H. HECK, JR. by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

KRISTIN L. ARNOLD, Atty. Reg. No. 0088794, 120 West Second Street, Suite 1717, Dayton, Ohio 45402 Attorney for Defendant-Appellant

.............

EPLEY, J. -2-

{¶ 1} Devion Lovett was found guilty after a jury trial in the Montgomery County

Court of Common Pleas of two counts of felonious assault (deadly weapon and serious

physical harm), each with a firearm specification, and one count of improper handling of

a firearm in a motor vehicle. After a mistrial on an additional count of felonious assault

(deadly weapon), Lovett pled no contest to that offense. After merging some offenses,

the trial court imposed an agreed aggregate sentence of 6 to 7½ years in prison.

{¶ 2} Lovett appeals from his convictions, claiming that his speedy trial rights were

violated and that the trial court abused its discretion in denying his request for a jury

instruction on self-defense. For the following reasons, the trial court’s judgment will be

affirmed.

I. Facts and Procedural History

{¶ 3} On November 19, 2020, Lovett was indicted on two counts of felonious

assault (deadly weapon), one count of felonious assault (serious physical harm), and one

count of improper handling of a firearm in a motor vehicle. Each felonious assault charge

contained a three-year firearm specification. The charges arose from an altercation at a

gas station between Lovett and two other individuals during which Lovett retrieved a gun

from his car and fired several shots, hitting one of the men. Lovett filed a notice that he

was claiming self-defense and defense of another.

{¶ 4} After delays occasioned by motions and a continuance due to the COVID-19

pandemic, Lovett moved to dismiss the case on speedy trial grounds. Soon after, -3-

Lovett’s defense counsel moved to withdraw, and Lovett retained new counsel. The trial

court denied the motion to dismiss, and the matter proceeded to a jury trial on June 15,

2021.

{¶ 5} At trial, the State presented evidence that on October 22, 2020, Jacob Webb

and Alex Bieker drove to the Valero gas station on Valley Street in Riverside. Webb

parked at a pump, and the two men went inside the store to purchase some items.

Webb’s car was parked facing Lovett’s, but he testified that he did not notice Lovett there.

After completing their purchases, Webb and Bieker got back into Webb’s car. Webb

drove a short distance from the pump, but stopped before pulling into the street so that

he could select music on his phone. At this juncture, Webb’s car was nearly parallel to

Lovett’s, but facing in opposite directions. The front of Webb’s car angled toward Valley

Street.

{¶ 6} While Webb was picking out music, Lovett exited his car and took

approximately four steps over to Webb’s driver’s door. Lovett opened the door, grabbed

Webb’s steering wheel, and starting punching him. Bieker heard Lovett say something

to the effect of “I told you I was going to find you” or “I told you I would get you.” As

Webb’s car drifted forward and Webb tried to put the vehicle in park, Bieker got out of the

passenger side, came around the back of the vehicle, and hit Lovett in the face in an

attempt to “get him off” of Webb. Lovett was knocked to the ground. Webb’s car curved

around toward the left rear of Lovett’s car and stopped.

{¶ 7} Lovett got up and turned his attention to Bieker, who was backing away and

asking Lovett to let them leave. While Lovett advanced on Bieker, Webb got out of his -4-

car, and Bieker called to Webb for help. Webb then started to run toward Lovett on the

driver’s side of Lovett’s car. Lovett turned from Bieker and ran along the passenger side

of his car, with Webb and Bieker following. When Lovett circled around and reached his

driver’s side door, he grabbed a gun and turned to shoot at Webb and Bieker, who then

were by the trunk of Lovett’s car. Upon seeing a gun, Webb and Bieker both turned to

run away. Lovett fired multiple shots; two shots struck the ground near Webb’s hands

after he tripped, and one shot hit Bieker’s right thigh. Webb and Bieker both testified that

they did not have a gun when the altercation occurred. Lovett left the scene in his car,

and Webb and a witness, Mindy Payne, each called 911. Webb identified Lovett as the

shooter, and Payne provided a description of Lovett and his vehicle.

{¶ 8} Lovett’s girlfriend, Valerie Depoyster, who was seated in Lovett’s car

throughout the incident, corroborated much of Webb’s and Bieker’s testimony about what

had occurred. She further testified that she had not been threatened during the incident

and had not been fearful for her safety. After Depoyster and Lovett left the gas station,

Lovett dropped her off at a hotel in Beavercreek where they were staying. Neither called

911 to report an assault. Later in the day, Lovett asked Depoyster to meet him near

Cincinnati and bring him some clothes and other items. Lovett told her that he would let

her know when he was somewhere safe.

{¶ 9} Officer Michael Brewer, an evidence technician, recovered four shell casings

from the scene, and Detective Michael Sullivan was assigned to investigate the shooting.

Webb and Depoyster both told Sullivan that Lovett was the shooter. A few days later,

Lovett was apprehended in Indianapolis, Indiana. Lovett admitted to Detective Sullivan -5-

that he had shot at Webb and Bieker, and he said that he had gotten rid of the gun. In

recorded jail phone calls after his arrest, Lovett described how scared Webb looked when

he opened the car door. He also admitted that he had taken three shots and had been

aiming for Webb when he fired his gun.

{¶ 10} Lovett testified in his own defense. He said that on October 22, 2020,

he was at Valero with his girlfriend to purchase gas when he saw Webb. According

to Lovett, Webb had previously confronted him due to a fatal automobile collision

involving Lovett and Webb’s brother several years earlier. Lovett commented to

Depoyster, “It’s the guy that’s been threatening me.” As Webb was leaving the gas

station, Lovett decided “to approach the situation and tell him to stop threatening me

and my family and squash it right there.” Lovett got out of his car and approached

Webb’s car, but he testified that he left his gun in his car because he “had no intention

to hurt him.”

{¶ 11} Lovett admitted that he “did walk aggressively” to Webb’s vehicle, and when

he opened Webb’s car door, he told Webb that his (Webb’s) brother hit the side of his car

and to stop threatening him. Lovett denied striking Webb. He testified that Webb threw

his phone at Lovett and jumped into the back seat. Lovett said that he grabbed the

steering wheel to keep Webb’s car from sliding into traffic. When Lovett turned around,

he was hit in the left eye by Bieker, knocking him to the ground. The impact also knocked

out Lovett’s contact lens and caused his eye to swell shut.

{¶ 12} Lovett testified that when he got back up, he asked Bieker why he had

punched him. Lovett heard Bieker tell Webb, “Come on, Jake, let’s go” and saw Webb -6-

running at him, clutching his pants. Lovett testified that he was in fear for his life. He

stated that he did not get in his car and drive away, because Webb and Bieker were close

to him and he “felt like if [he] just sat down in the car, they both would have opened up

the doors, and [he] was scared for [his] girlfriend’s safety, too.” He stated that he

grabbed his gun to protect his and his girlfriend’s lives and fired “I thought, three, but I

guess four” shots at the ground. Lovett then sped away. He stated that he left the gas

station because he did not want his girlfriend involved, and he left the area because he

did not know what to do.

{¶ 13} Lovett requested a jury instruction on self-defense, which was denied. The

trial court reasoned that the evidence showed that Lovett was at fault in creating the

situation that gave rise to the altercation and shooting, that he used deadly force, and that

Lovett violated his duty to retreat.

{¶ 14} After deliberating, the jury found Lovett guilty of the felonious assault

charges related to Bieker, which were charged in Counts 1 (deadly weapon) and 3

(serious physical harm), as well as the firearm specifications attendant to Counts 1 and

3. It also found him guilty of improper handling of a firearm (Count 4). The trial court

declared a mistrial as to Count 2, the felonious assault (deadly weapon) charge related

to Webb, but Lovett subsequently pled no contest to that offense. As part of his plea,

the State dismissed the firearm specification accompanying Count 2 and the parties

agreed to a sentence of 6 to 7½ years in prison on all of the charges.

{¶ 15} At sentencing, the trial court merged Count 3 into Count 1 and imposed

concurrent sentences totaling a minimum of 3 to a maximum of 4½ years in prison, plus -7-

three years for the firearm specification to be served prior and consecutively to the

sentences for the offenses.

{¶ 16} Lovett appeals from his convictions, raising two assignments of error.

II. Speedy Trial

{¶ 17} In his first assignment of error, Lovett claims that the trial court erred in

denying his motion to dismiss based on a violation of his speedy trial rights.

{¶ 18} The right to a speedy trial is guaranteed by the Sixth Amendment to the

United States Constitution and Article I, Section 10 of the Ohio Constitution. Ohio’s

speedy trial statute, R.C. 2945.71, “was implemented to incorporate the constitutional

protection of the right to a speedy trial.” Brecksville v. Cook,

,

(1996). Accordingly, the speedy trial statutes must be strictly construed

against the government.

{¶ 19} R.C. 2945.71 designates specific time requirements for the government to

bring an accused to trial. Under that statute, a felony defendant must be brought to trial

within 270 days of arrest. R.C. 2945.71(C). Each day during which the accused is held

in jail in lieu of bail on the pending charge is counted as three days. R.C. 2945.71(E).

The day of arrest is not counted when calculating an accused’s speedy trial time. State

v. Cimpaye,

,

(2d Dist.).

{¶ 20} A defendant can establish a prima facie case for a speedy trial violation by

demonstrating that the trial was held past the time limit set by statute for the crime with

which the defendant is charged. State v. Gray, 2d Dist. Montgomery No. 20980, 2007-

Ohio-4549, ¶ 15. “If the defendant can make this showing, the burden shifts to the State -8-

to establish that some exception[s] applied to toll the time and to make the trial timely. If

the State does not meet its burden, the defendant must be discharged. R.C. 2945.73.”

{¶ 21} The time within which a defendant must be brought to trial may be extended

only for the reasons specifically enumerated in R.C. 2945.72. State v. Brewer, 2d Dist.

Montgomery Nos. 22159, 22160,

, ¶ 37, citing State v. Palmer,

,

(1998). Those reasons include any period of delay

necessitated by a motion instituted by the accused, 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.” R.C. 2945.72 (E), (H). A discovery request

is a tolling event under R.C. 2945.72(E). State v. Brown,

, 2002-Ohio-

7040,

, syllabus.

{¶ 22} Sua sponte continuances fall within continuances “granted other than on

the accused’s own motion.” R.C. 2945.72(H). When continuing a case sua sponte, the

trial court must enter the order of continuance and the reasons for the order by journal

entry prior to the expiration of the time limits prescribed in R.C. 2945.71 for bringing a

defendant to trial. State v. Ramey,

,

, ¶ 12 (2d Dist.);

State v. Mincy,

,

(1982). “The journalization of reasons

is necessary to permit the appellate court to determine whether, on the accused’s claim

that his statutory speedy trial rights were violated, the period of delay resulting from the

sua sponte continuance was nevertheless ‘reasonable.’ ” Ramey at ¶ 13, citing R.C.

2945.72(H). -9-

{¶ 23} In this case, Lovett was arrested on the charges on November 17, 2020.

Day one of his speedy trial time began on the next day, November 18, 2020. Lovett

remained incarcerated from that day until his jury trial on June 15, 2021. Due to his

incarceration, the State had 90 calendar days – until February 15, 2021 – to bring him to

trial. The following events occurred which tolled Lovett’s case and extended the speedy

trial deadline.

{¶ 24} On December 2, 2020, Lovett filed a demand for discovery, which was

received by his attorney the next day (1 day tolled). On December 7, 2020, Lovett filed

a motion for bond review (which was denied on December 21) and his attorney requested

continuances of a status conference until December 28, 2022 (21 days tolled). The

speedy trial deadline was, therefore, extended from February 15 until March 9, 2021.

{¶ 25} At the December 28, 2020 scheduling conference, the trial court apparently

set the final pretrial conference for March 22, 2021 and the jury trial for March 29, 2021,

which was beyond the speedy trial deadline. A scheduling order was filed the next day.

{¶ 26} In a decision filed on December 31, 2020, the trial court provided its

explanations for scheduling Lovett’s jury trial beyond the early March 2021 speedy trial

deadline. The court stated that the common pleas court had issued a series of

emergency and administrative orders in response to the “ongoing public health crisis

caused by the COVID-19 pandemic,” which included the suspension of jury trials. The

trial court noted that the Attorney General of the State of Ohio had opined that the current

pandemic emergency provided a reasonable basis for a continuance of a trial beyond the

time limitations imposed under R.C. 2945.71, as well as under state and federal -10-

constitutional guarantees. The Ohio Supreme Court also had issued guidance, which

included limiting in-person proceedings.

{¶ 27} The trial court further recognized that, as of the date of its ruling, “the public

health crisis continues” and Montgomery County was under a Level 3 (red) public

emergency pursuant to the Ohio Public Health Advisory System, “which means that there

is ‘very high exposure and spread’ and activities are to be limited as much as possible.”

At that time, Ohio was under a mandatory mask order and nighttime curfew imposed by

the Governor, and there were limits, with exceptions, on the size of public gatherings.

The Ohio Department of Health continued to recommend that people remain

approximately six feet away from each other in public settings, as large gatherings of

people exacerbated community spread and put those attending at greater risk of

exposure to COVID-19.

{¶ 28} The trial court found that “[l]imiting the number of people in a courtroom and

maintaining the appropriate social distancing make jury service difficult to accomplish

within the parameters set by the recommendations of the Ohio Department of Health.

Even with precautions being taken in the courtroom, jurors would likely be in situations

where they would be in close proximity to each other, thereby increasing the risk of

spreading COVID-19.” In addition, the court noted that some individuals might be

uncomfortable participating in a jury trial due to the potentially high rate of exposure to

and risk of contracting COVID-19 and that a jury trial “poses a risk to the defendant in this

case, who is currently housed at the Montgomery County Jail,” and potentially to those

housed at the jail. -11-

{¶ 29} The trial court also commented on the effect of COVID-19 on its docket. It

stated: “Due to the inability to conduct jury trials during the months of March through July

of 2020 trials were rescheduled. Those trials are now set for January, February and

March of 2021. The court has two (2) to three (3) jury trials scheduled each week in

January, February and early March of 2021. Accordingly, a trial cannot be scheduled in

this matter at or prior to these speedy trial deadline dates. * * * At this time, it is not

practicable for this court to conduct a jury trial as a remote proceeding.”

{¶ 30} We find the trial court’s sua sponte continuance of Lovett’s trial date until

March 29, 2021 was reasonable. Shortly before the trial court’s sua sponte continuance,

the Ohio Supreme Court recognized the seriousness of the public health emergency,

noting that “[i]t is now December 2020, and we are approaching what could be the height

of the COVID-19 pandemic. The daily numbers of confirmed COVID-19 cases,

hospitalizations, and deaths have significantly increased.” In re Disqualification of

Fleegle,

,

,

. The supreme court

emphasized that, “[d]uring this public-health emergency, a judge’s priority must be the

health and safety of court employees, trial participants, jurors, and members of the public

entering the courthouse.” Id. at ¶ 8. It reiterated that “all Ohio judges have been

advised [that] trial judges have the authority to continue trials for defendants on a case-

by-case basis without violating speedy-trial requirements.” Id. at ¶ 7. The supreme

court cited R.C. 2945.72(H) and the Ohio Attorney General’s opinion, which approved of

the suspension of jury trials to prevent the spread of COVID-19 and opined that “they may

do so consistent with state and federal speedy-trial obligations. * * * Although tolling -12-

speedy trial time by suspending jury trial activity is an extraordinary step, it is lawful – and

responsible – to do so during a pandemic emergency.” The supreme court held that it

was reasonable to continue a trial because of a pandemic state of emergency. Id.; see

also State v. Voris, 2d Dist. Miami No. 2021-CA-2,

(the trial court

lawfully scheduled defendant’s jury trial outside of the statutorily-required speedy trial

time, pursuant to R.C. 2945.72(H), based on the COVID-19 pandemic and the fact that

the county remained in a state of emergency due to the virus).

{¶ 31} Moreover, R.C. 2945.72(H) “contemplates continuances resulting from the

court’s docket pressures.” State v. Tillman, 2d Dist. Clark No. 2006-CA-118, 2008-Ohio-

2060, ¶ 17, citing State v. Lee,

,

(1976); State v.

Dillon, 2d Dist. Greene No. 2020-CA-4,

. The trial court’s need for

a continuance in Lovett’s case stemmed in part from delays caused by the COVID-19

pandemic in older criminal cases, and the record reflects that March 29, 2021 was the

earliest possible trial date that fit within both the court’s and counsel’s schedules. Both

the on-going pandemic and the docket pressures resulting from prior restrictions on jury

trials justified a reasonable continuance of Lovett’s trial date. Here, the continuance until

March 29, 2021, a delay of approximately three weeks, was reasonable.

{¶ 32} After the jury trial was scheduled for March 29, 2021, an available trial date

opened in February 2021. The trial court contacted counsel about the possibility of

holding the jury trial then, but defense counsel was unavailable.

{¶ 33} On March 9, 2021, Lovett filed a motion to dismiss on speedy trial grounds.

“A motion to dismiss under speedy trial grounds operates to toll the statute.” State v. -13-

Lewis, 2d Dist. Montgomery No. 28962,

, citing State v. Sanchez,

,

,

, ¶ 28. A week later, defense

counsel filed a motion to withdraw, which also tolled the speedy trial time pursuant to R.C.

2945.72(E).

{¶ 34} Lovett retained counsel, who was substituted on March 22, 2021; the trial

court vacated the March 29 trial date due to the substitution of counsel and indicated that

a pretrial conference would be held on March 29 instead. New defense counsel agreed

that he was in the process of obtaining the State’s discovery from prior defense counsel

and would be in a better position to set a new trial date at that time. The court filed an

entry continuing the case from March 22, 2021 until March 29, 2021, at the request of

defense counsel. At a later pretrial conference, the trial court scheduled the final pretrial

conference for June 7, 2021, and the jury trial for June 14, 2021. On June 9, 2021, the

court overruled Lovett’s March 9 motion to dismiss in a written decision. The

continuance of the trial date from March 29 to June 14 was occasioned by Lovett’s

pending motion and substitution of counsel. Consequently, this period of delay was not

chargeable to the State.

{¶ 35} The court indicated at the June 7, 2021 final pretrial conference that trial

would begin on June 15, 2021. We cannot say that this one-day delay (from June 14 to

June 15) was unreasonable.

{¶ 36} We therefore conclude that the trial court did not err when it overruled

Lovett’s motion to dismiss on speedy trial grounds and that Lovett’s statutory speedy trial

rights were not violated when he was brought to trial on June 15, 2021. -14-

{¶ 37} In his appellate brief, Lovett states in conclusory fashion that his

constitutional right to a speedy trial also was violated. App.R. 16(A)(7) requires an

appellant’s brief to contain “[a]n argument containing the contentions of the appellant with

respect to each assignment of error presented for review and the reasons in support of

the contentions, with citations to the authorities, statutes, and parts of the record on which

appellant relies.” App.R. 12(A)(2) further provides that an appellate court “may disregard

an assignment of error presented for review if the party raising it fails to identify in the

record the error on which the assignment of error is based or fails to argue the assignment

separately in the brief, as required under App.R. 16(A).” Lovett has not supported his

constitutional argument with any legal authority or analysis, and we decline to address it.

{¶ 38} Lovett’s first assignment of error is overruled.

III. Self-Defense

{¶ 39} In his second assignment of error, Lovett claims that the trial court abused

its discretion in failing to instruct the jury on self-defense.

{¶ 40} A person may act in self-defense, defense of another, or defense of that

person’s home. R.C. 2901.05(B)(1). The self-defense statute provides that “[i]f, at the

trial of a person who is accused of an offense that involved the person’s use of force

against another, there is evidence presented that tends to support that the accused

person used the force in self-defense, * * * the prosecution must prove beyond a

reasonable doubt that the accused person did not use the force in self-defense * * *.”

R.C. 2901.05(B)(1).

{¶ 41} To warrant an instruction on self-defense, there must be evidence -15-

presented that supports the conclusion that the defendant used force to defend himself

or herself. R.C. 2901.05(B)(1). Specifically, to establish self-defense, a defendant

must introduce evidence showing that: (1) he or she was not at fault in creating the violent

situation; (2) he or she had a bona fide belief that he or she was in imminent danger of

bodily harm; and (3) he or she did not violate any duty to retreat or avoid the danger.

State v. Brown,

,

(2d Dist.), citing State v. Thomas,

,

(1997).

{¶ 42} “It is well established that a person cannot provoke a fight or voluntarily

enter combat and then claim self-defense.” State v. James, 2d Dist. Montgomery No.

28892,

, citing State v. Wallace-Lee, 2d Dist. Greene No. 2019-CA-

19,

. Moreover, a defendant must have a bona fide belief that the

use of force was the only means of escape. James at ¶ 21. “Part of this entails a

showing that the defendant used ‘only that force that [was] reasonably necessary to repel

the attack.’ ” Wallace-

, citing State v. Bundy,

,

, ¶ 55 (4th Dist.). If the force used was so disproportionate that it shows a purpose

to injure, self-defense is unavailable. Id. at ¶ 43, quoting State v. Macklin, 8th Dist.

Cuyahoga No. 94482,

, ¶ 27.

{¶ 43} Generally, a person has a duty to retreat, if possible, before using lethal

force. State v. Willford,

,

(1990); State v. Dale,

2d Dist. Champaign No. 2012-CA-20,

. The exception, known as

the Castle Doctrine, applies if a confrontation happens in a person’s home, in which case

there is no duty to retreat. R.C. 2901.09(B); James at ¶ 22. -16-

{¶ 44} We review a trial court’s denial of a requested jury instruction for “an abuse

of discretion under the facts and circumstances of the case.” State v. Taylor, 2d Dist.

Montgomery No. 28668,

, quoting State v. Wolons,

,

(1989); State v. Blair, 2d Dist. Montgomery No. 28904, 2021-

Ohio-3370, ¶ 10.

{¶ 45} The trial court found that Lovett was at fault in creating the situation, that he

used deadly force, and that he violated his duty to retreat, and we find no abuse of

discretion in these determinations. First, we agree that Lovett did not establish the first

element of self-defense, i.e., that he was not at fault in creating the violent situation. Prior

to the altercation, Webb and Bieker were in Webb’s vehicle; they had pulled away from

the gas pump and were facing Valley Street, preparing to leave the gas station. There

is no indication that Webb and Bieker were aware of Lovett’s presence, and Webb

testified that he did not notice Lovett. Lovett initiated the encounter by exiting his vehicle,

walking “aggressively” to Webb’s car, throwing open the driver’s door, and engaging with

Webb, both physically and verbally. Depoyster heard Lovett yelling at Webb, and Lovett

did not deny it. The surveillance video from the Valero shows Lovett initiating the

altercation.

{¶ 46} In addition, Lovett did not establish that his use of a gun was his only means

of escape and that he did not violate his duty to retreat. At several points before he

retrieved his gun from his car, Lovett could have de-escalated the situation, reentered his

car, and left the gas station. Most notably, after Bieker punched Lovett, knocking him

down, nothing prevented Lovett from getting into his car and leaving while Bieker was -17-

backing away from him and Webb was still in his own vehicle. Lovett testified that he

feared for himself and his girlfriend once Webb and Bieker started chasing him around

his car, but he had prolonged the encounter himself by that point.

{¶ 47} Upon review of the evidence presented at trial, the trial court’s denial of

Lovett’s request for a jury instruction on self-defense was not an abuse of discretion.

Lovett’s second assignment of error is overruled.

IV. Conclusion

{¶ 48} The trial court’s judgment will be affirmed.

.............

WELBAUM, J. and LEWIS, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Lisa M. Light Kristin L. Arnold Hon. Timothy N. O’Connell