COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68073 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION MAYSHUN HALL : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 12, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-313200 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor DEBORAH R. NAIMAN, Assistant L. CHRISTOPHER FREY, Assistant The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES Z. DRAPER, Cuyahoga County Public Defender ROBERT R. CLARICO, Assistant The Marion Building Rm 307 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113-1569 - 2 - O'DONNELL, J.: Mayshun Hall appeals his convictions for possession of cocaine, preparation of cocaine for shipment, and possession of criminal tools, each with firearm and violence specifications, claiming denial of his right to speedy trial, insufficiency of evidence to sustain convictions, and prosecutorial misconduct. For the following reasons, we affirm the judgment of the trial court. East Cleveland police Detective Lamont Lockhart arranged for a confidential informant to make controlled purchases of crack cocaine from the rear door of apartment 3 at 13520 Woodworth Avenue in East Cleveland, Ohio, on January 5 and 8, 1993. Immediately after the latter controlled purchase, members of the East Cleveland police department, Special Weapons and Tactics (S.W.A.T) unit, and Alcohol, Tobacco and Firearms (A.T.F.) agents of the United States Treasury Department executed a search warrant at that address, and recovered more than 750 rocks of cocaine, more than $4500 in cash, and arrested, among others, Mayshun Hall who was found alone in apartment 4, an abandoned unit containing no appliances, bedding, sink or toilet. No contraband, however, was located in apartment 4 or on Hall's person. Upon arrest, East Cleveland charged appellant and confined him in East Cleveland jail until federal agents obtained a - 3 - warrant and arrested appellant on January 14, 1993. At that time, the city dismissed all charges against him. Thereafter, on March 25, 1993, the Cuyahoga County Common Pleas Court conducted a probation violation hearing on appellant's carrying a concealed weapon conviction, terminated probation and ordered the four to ten year sentence into execution at the Lorain Correctional Institution. While appellant was serving that sentence, a Cuyahoga County Grand Jury indicted him April 20, 1994 in case No. 309850 for charges related to the January 8, 1993 search. Federal charges were thereafter dismissed, appellant was subsequently re-indicted in case No. 313200 on the instant case, and the State of Ohio nolled case No. 309850. A jury found appellant guilty of two counts of aggravated drug trafficking, possession of criminal tools, and further found appellant used a firearm in commission of these offenses. The court sentenced appellant to eleven and one-half to fifteen years. The appeal raises three assignments of error for our consideration. I. Appellant's first assignment of error states: MR. HALL'S DUE PROCESS RIGHTS UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND HIS STATUTORY SPEEDY TRIAL RIGHTS UNDER REVISED CODE SECTION 2945.71 WERE VIOLATED WHEN THE TRIAL COURT DENIED HIS MOTION TO DISMISS. - 4 - Appellant contends the trial court committed reversible error by denying his motion to dismiss for lack of speedy trial because more than 600 days elapsed from the date of arrest until the date of trial. We begin our analysis of this issue by examining R.C. 2945.71(C)(2), which states: (C) A person against whom a change of felony is pending: *** (2) Shall be brought to trial within two hundred seventy days after his arrest. *** Upon review, we first observe that R.C. 2945.71 only applies to those, "against whom a charge of felony is pending," (Emphasis added), and that it is a time limitation imposed upon the right of the State of Ohio to prosecute criminal activity. Hence, at the outset, for purposes of calculating time under R.C. 2945.71, we must separate the State of Ohio from the federal government. Next, we note that the Ohio Supreme Court has provided a formula by which to calculate speedy trial time against the State of Ohio. In State v. Broughton, (1991), 62 Ohio St.3d 253, the syllabus states in paragraph one: For purposes of computing how much time has run against the state under R.C. 2945.71 et seq., the time period between the dismissal without prejudice of an original indictment and the filing of a subsequent indictment, premised upon the same - 5 - facts as alleged in the original indictment, shall not be counted unless the defendant is held in jail or released on bail pursuant to Crim. R. 12(I). Inherent in this pronouncement are two unstated but obvious corollaries: One, in order to count time against the state during periods when the defendant is held in jail or released on bail, the state must be the responsible sovereign, and two, the act of holding the defendant in jail or releasing the defendant on bail must arise solely from the charges for which the defendant is to stand trial. Here, neither corollary is valid. Here, we note that the federal government indicted appellant, but failed to ever bring that matter to trial. Since the state did not indict, the appellant was not, at that time, a person against whom a felony charge was pending, and, therefore, any time delay cannot be counted against the State of Ohio. Next, we consider the reason for the defendant's confinement at the Lorain Correctional Institution during the period of federal indictment. Since the appellant was confined in a state penal institution on unrelated charges of carrying a concealed weapon, none of that confinement time can be counted against the State of Ohio for two reasons -- appellant had not been charged with a felony, and he was incarcerated in a previous conviction. Contrariwise, the period of time appellant spent in jail under arrest by the City of East Cleveland can properly be - 6 - counted against the 270-day speedy trial limitation. Using the three-for-one formula described in R.C. 2945.71(E), twenty one days are properly charged against the State for this period of incarceration. Thus, following State v. Broughton, supra, we conclude that since the State indicted appellant on March 25, 1994, in case No. 309850, that date re-commences the running of speedy trial time. Since appellant remained incarcerated on two charges, the carrying concealed weapon probation violation and case No. 309850, R.C. 2945.72 directs the days are not counted at the three-for-one rate, but rather one-for-one. As trial commenced September 13, 1994 in case No. 313200, 142 days elapsed from the date of indictment to the date of trial. This 142-day period added to the 21-day period is less than the 270-day period defined in R.C. 2945.71. Accordingly, the State of Ohio did not violate appellant's speedy trial rights in this case and therefore, this assignment of error is overruled. II. Appellant's second assignment of error states: MR. HALL'S DUE PROCESS RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AS HIS CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. Appellant argues that the jury could not have found the State proved the elements of possession of cocaine trafficking in - 7 - drugs or the firearm specification beyond a reasonable doubt. The State maintains that the evidence presented was sufficient to support the convictions and to affirm the jury's findings. We must then address the issue of whether or not the evidence was sufficient to convict the appellant. Paragraph 2 of the syllabus in State v. Jenks (1991), 61 Ohio St.3d 259, states An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979] 443 US 307, followed.) Therefore, we must examine the evidence as it relates to the elements of the respective drug charges and the firearm specification. East Cleveland police Detective Lockhart testified the police recovered approximately 790 rocks of cocaine and two 9 mm handguns, a semi-automatic, a Taurus and the other a Ruger from the premises of apartment 3 at the time they executed the search warrant. Further, Officer Jamie Tavano testified he saw a gentleman come out of apartment 3 and enter apartment 4 and he notified other members of the S.W.A.T team of his observation. Also, Detective Michael Perry testified at the time he arrested appellant in apartment 4 he recovered a pager, and the apartment was "pretty much a shambles," meaning it contained no toilets, - 8 - sinks, appliances, furniture, clothing or blankets. Defense counsel elicited testimony that at the time of appellant's arrest in apartment 4, police did not recover any drugs or weapons. The trial judge correctly charged the jury on the issue of actual or constructive possession and the fact that two or more persons may have joint possession of an object. In addition, the trial court correctly charged the jury on the law of aiding and abetting relative to the counts of drug possession and preparation for shipment. We, therefore, conclude the jury made permissible inferences from the State of the evidence that the appellant had been in apartment 3 prior to police entry into the building, had acted in concert with others with respect to the drug charges and firearm specification, and, therefore, we conclude the evidence presented would convince the average mind of guilt beyond a reasonable doubt. Accordingly, the convictions are supported by sufficient evidence and this assignment of error is overruled. III. Appellant's third assignment of error states: MR. HALL'S RIGHT TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE MISCONDUCT OF THE PROSECUTOR. Appellant alleges the prosecutor impermissibly commented during final argument on reasons why three state's witnesses failed to testify at trial and argues this misconduct constitutes - 9 - reversible error. The state urges such comments were not prejudicial and did not deprive appellant of a fair trial. At issue is the following statement made during the rebuttal portion of the state's final argument: MS. NAIMAN: [prosecutor] And ask yourselves a question, ladies and gentlemen, when Det. Lockhart took that stand the second time, and I asked him very carefully pointed questions as to three witnesses, what did he say? Couldn't even locate some. They wouldn't testify. MS. TYLEE: Objection. MR. SOUKUP: Objection. THE COURT: Sustained. MS. NAIMAN: They were unavailable. Ask yourselves, gee, what could the reasons be for that? MS. TYLEE: Objection. MR. SOUKUP: Objection, your Honor. May we approach the side bar? THE COURT: No. Objection sustained. In State v. Smith (1984), 14 Ohio St.3d 13, the Ohio Supreme Court catalogued the test for prosecutorial misconduct in cases like this. The test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. United States v. Dorr, supra, at 120. To begin with, the prosecution must avoid insinuations and assertions which are calculated to mislead the jury. Berger v. United States, supra, at 88. *** - 10 - Thus, we must consider whether the comments rise to the level of reversible error. Citing State v. Pustare, (1973), 33 Ohio App.2d 305, 312, the court observed in State v. Maurer (1984), 15 Ohio St.3d 239 at 269, considerable latitude is permitted in closing arguments, and the question is generally considered one falling in the first instance within the sound discretion of the trial court. As in Maurer, supra, we find no abuse of discretion by the trial court in the conduct of closing arguments in this instance. Therefore, we must now consider the possible prejudice caused by the prosecutor's statements. In State v. Keenan (1993), 66 Ohio St.3d 402, 405, the court considered what it described as "an aggravated example of *** misconduct" and concluded "the prosecutor's pattern of misconduct throughout most of the trial and during closing argument did deprive the defendant of a fair trial." (Emphasis added.) The court also noted at p. 410 citing State v. Moritz (1980), 63 Ohio St.2d 150, 157, "[t]he closing argument must *** be reviewed in its entirety to determine if the prosecutor's remarks were prejudicial." Having followed these directives, we cannot conclude the single isolated instance of alleged impropriety in this case rises to the level of error found in Keenan, supra, though we highly discourage this practice among prosecutors. Finally, the court in Keenan noted the evidence of guilt in that case was not overwhelming. Having reviewed the sufficiency of evidence in - 11 - assignment of error two, we further bolster our conclusion here by the determination that the evidence presented in this case met the sufficiency test because it would convince the average mind of guilt beyond a reasonable doubt. Hence, we conclude that the statements made during final argument by the prosecutor, objected to by defense counsel, and sustained by the trial judge, are harmless in this case because we are convince the jury would have found guilt beyond a reasonable doubt without such comments. This assignment of error is overruled. Judgment affirmed. - 12 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, C.J., and SPELLACY, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .