COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68279 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DAVID WALTERS : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : JANUARY 18, 1996 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 313243 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones, Esq. Cuyahoga County Prosecutor James D. Ingalls, Esq. By: John F. Manley, Esq. 2000 Standard Building Assistant Prosecuting Atty. 1370 Ontario Street The Justice Center Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 -2- HARPER, J.: Defendant-appellant, David Walters, was indicted for felonious assault, R.C. 2903.11, with a violence specification. The case proceeded to trial by jury and on November 4, 1994, appellant was convicted of the offense charged in the indictment. Appellant was sentenced eight to fifteen years incarceration. Appellant timely appeals his conviction for felonious assault with a violence specification setting forth three assignments of error. The following pertinent evidence was adduced at appellant's trial. I. At the trial, Lt. Mary Skorpys testified that on July 24, 1994, a young woman, Ramona Tanner, was standing on East 77th Place, in Cleveland, Ohio at 5:30 a.m. Lt. Skorpys described her as hysterical. Lt. Skorpys was alone in a marked police car on routine duty. Lt. Skorpys stopped and pulled over to speak with Ms. Tanner. Ms. Tanner told the officer that she had just seen her girlfriend, the victim, Melinda Goals, being beaten by appellant, David Walters. Lt. Skorpys requested back up and Ms. Tanner waited in the zone car with her until back up arrived. Lt. Skorpys saw David Walters, appellant, approach the car. Appellant told Officer Skorpys he was going to check on his wife. He then went inside the house and a few minutes later appeared at a second floor window and yelled to Officer Skropys that, "whatever was going on inside the -3- house it was none of her business." Appellant then slammed the windows and doors shut and pulled the curtains across the window. On cross-examination, Officer Skorpys stated she did not witness any violence between the appellant and the victim. Lt. Skorpys stated appellant told her the victim bit him, and he then struck her. Patrolman Chism testified that she arrived in the back up car with Patrolman Dimarco. They proceeded to go up the back stairs of the two-family home where Lt. Skorpys had seen the appellant minutes earlier prior to him entering the home. Officer Skropys stated she observed blood going all the way up the steps. The officers knocked on the back door, identified themselves as policemen, but there was no answer. They continued to knock on the door to no avail. The officers heard scuffling noise and the sound of running water. Patrolman Dimarco then kicked the door open. Patrolman Chism stated once the officers entered the home, they saw the victim lying unconscious, bloody and swollen on the bathroom floor. The appellant was standing over her. The appellant said he was cleaning her up and that she was his wife. Patrolman Chism described the appellant as agitated and he had to be restrained. On cross-examination, Patrolman Chism stated she did not observe any violent interaction between the appellant and the victim. Patrolman Dimarco testified they observed a great deal of blood. He stated the appellant told him that he did not beat the -4- victim, and he did not understand why he was being arrested. The appellant told Patrolman Dimarco that the victim smacked him. He hit her a couple of times and that it was just a misdemeanor, so it was just thirty days. Patrolman Dimarco stated that the appellant became enraged when he was told that the victim appeared to have serious head injuries. The appellant then told him the victim had hit her head against the wall in the house. The appellant later said the victim had been assaulted by two assailants in the back alley behind the home. The victim, Melinda Goal, testified that she was assaulted by two unknown, African-American females, in the back alley behind her home. The victim testified that she had planned to marry the appellant. She testified that she was intoxicated the early morning of the incident. She stated that after she was beaten by the two females, that she walked up the stairs to her home. She became very angry because the appellant was not at home. She testified that when he arrived, they argued and he hit her in the face. Appellant, David Walters, testified at the trial. He said that he had been living with the victim for the past three years. He stated that when he arrived at the home, he noticed blood on the stairway. He saw the victim when he came into the home. He described her as hysterical. He stated that her nose was bleeding. She started to argue with him. He described her as intoxicated. He denied striking the victim. -5- The victim was taken to St. Luke's Hospital where she underwent brain surgery. She was released after two and one half weeks. II. Appellant presents the following assignment of errors: I. THE TRIAL COURT ERRED AS A MATTER OF LAW TO THE PREJUDICE OF APPELLANT WHEN IT DENIED APPELLANT'S MOTION TO DISMISS INDICTMENT AND TO DISCHARGE DEFENDANT FOR WANT OF SPEEDY TRIAL IN VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHTS AND STATUTORY RIGHTS TO A SPEEDY TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND OHIO REVISED CODE SECTION 2945.71. II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO RULE 29(A), OHIO RULES OF CRIMINAL PROCEDURE, AS THERE WAS INSUFFICIENT EVIDENCE TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSE CHARGED BEYOND A REASONABLE DOUBT. III. APPELLANT WAS DENIED HIS RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL, PURSUANT TO THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 1O OF THE OHIO CONSTITUTION. III. In appellant's first assignment of error, appellant alleges the state violated his right to speedy trial as guaranteed by the Sixth Amendment to the United States Constitution, Section 10, Article I, Ohio Constitution and R.C. 2945.71. R.C. 2945.71 (C)(2) and (E) require the state to bring a felony defendant to trial within two hundred and seventy days of arrest or within ninety days if the accused is held in jail in lieu of bail on the pending charge. Thus, the days which the accused is -6- held in jail in lieu of bail on the pending charge is subject to the triple-count provision of R.C. 2945.71(E). The time within which the accused must be brought to trial may be extended for only reasons under R.C. 2945.72. These reasons include any delay necessitated by a motion by the accused, any continuances 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 (H). When a criminal defendant has demonstrated that he was not brought to trial within the time limits imposed by the triple- count provision of R.C. 2945.71 (E), he presents a prima facia case for discharge. State v. Butcher (1986), 27 Ohio St.3d 28, 30-31. Once an accused has demonstrated a prima facia case for discharge, it becomes the state's obligation to produce evidence demonstrating that the defendant was not entitled to be brought to trial within the limits of R.C. 2945.71. State v. Bowman (1987), 41 Ohio App.3d 318. The day of arrest is not to be included when computing the time within which a defendant must be brought to trial under R.C. 2945.71. State v. Steiner (1991), 71 Ohio App.3d 249; State v. Ulmer (Nov. 19, 1981), Cuyahoga App. No. 43444, unreported. A pre- trial conference held pursuant to the defendant's request, does not, ipso facto, extend the time for trial under R.C. 2945.71. State v. Reuschling (1986) 30 Ohio App.3d 81. While a request for a pretrial does not automatically extend the statutory time requirements of R.C. 2945.71, where the record demonstrates that -7- the pretrial was granted upon defendant's own request and there is nothing facially unreasonable about the amount of time taken to provide the pretrial and subsequent trial, the defendant was not denied a speedy trial. State v. Gowe (1983), 13 Ohio App.3d 355. The court has held that a trial court's sua sponte continuance beyond the statutory limits is not a basis for dismissal if the trial record affirmatively demonstrates the necessity for a continuance and the reasonableness thereof. State v. Patrick (1980), 6 Ohio St. 2d 107. The trial court speaks only through its journal. State v. Mincy (1982), 2 Ohio St. 3d 6; State v. Montgomery (1980), 61 Ohio St.2d 78. Appellant contends the following facts demonstrate the trial court erred when it overruled his motion for discharge due to the lack of a speedy trial. DATE EVENT DAYS/JAIL SPEEDY TRIAL DATE 07/24/94 Arrest 07/24-31/94 08 days 24 days 08/01-31/94 31 days 93 days 09/01-30/94 30 days 90 days 10/01-25/94 25 days 75 days ------- ------- 94 days 282 days Appellee, on the other hand, submits that only fifty-five days had elapsed of the appellant's ninety days. Therefore, appellant's right to a speedy trial was not violated. Appellee relies on the following calculations to rebut appellant's argument: -8- DATE EVENT DAYS/JAIL SPEEDY TRIAL DATE 07/25-07/31/94 07 days 21 days 08/01-08/31 31 days 93 days 09/01-09/13 13 days 09/13-10/18 Def. req'd continuance -0- days 10/16-10/21 04 days 12 days 10/21-11/02 Court continuance ------- ------- 55 days 126 days The following entries are contained in the record before this court: August 25, 1994: A True Bill Indictment. September 01, 1994: Motion for Bond Reduction. September 14, 1994: Motion for Discovery. September 20, 1994: Pretrial held. Pretrial set for September 22, 1994 at defendant's request. September 27, 1994: Pretrial held 9/13. Final pretrial set for October 3, 1994. Trial set for October 16, 1994 at defendant's request. October 18, 1994: Motion In Limine filed. October 20, 1994: Bench Warrant for Material Witness, Melinda Goal. October 25, 1994: Motion to Dismiss Indictment and to Discharge Defendant. October 27, 1994: Trial reset for first available day. Court in trial on another case. IV. The record before this court demonstrates the appellant was brought to trial within two hundred and seventy days pursuant to -9- R.C. 2945.71. State v. Bickerstaff (1984), 10 Ohio St.3d 62. Appellant's trial was originally set to begin October 16, 1994, a date within the speedy trial time period. In the present case, the motions filed by the appellant tolled the statutory time period, bringing his trial within time allotted by statute. Appellant was arrested on July 24, 1994, thus, this day is not included in the speedy trial calculation. The speedy trial calculation started on July 25, 1994. From July 25, 1994 to September 1, 1994, (37) thirty-seven days were calculated in the speedy trial calculation. From September 1, 1994 until September 7, 1994, six (6) days were tolled due to appellant's Motion for Bond Reduction, pursuant to R.C. 2945.72. From September 7, 1994 until September 13, 1994, (6) days are included in the speedy trial calculation. The pre-trial was held on September 13. Eight days (8) are tolled per R.C. 2945.72(H), from September 14, 1994 to September 22, 1994, due to defendant's request. From September 22, until the final pre-trial, October 3, 1994, (11) eleven days are included in the speedy trial calculation. Mincy, supra. From October 3, 1994, the final pre-trial date, until October 18, 1994, fifteen days (15) are included in the speedy trial calculation. From October 18, 1994, until the time of trial, time was tolled, pursuant to R.C. 2945.72, due to appellant's filing a Motion of Limine. -10- Appellant was brought to trial within the applicable speedy trial period and thus appellant's assignment of error is not well taken. V. In appellant's second assignment of error, appellant contends the trial court erred as a matter of law in denying appellant's motion for acquittal pursuant to Crim.R. 29(A) as there was insufficient evidence to prove each and every element of the offense charged beyond a reasonable doubt. We disagree. Under Crim.R. 29, a trial court "shall not order an entry of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St. 2d 261, syllabus. "A motion for judgment of acquittal under Crim.R. 29 should be granted only when reasonable minds could not fail to find reasonable doubt." State v. Apanovitch (1987), 33 Ohio St.3d 18, 23. Thus the test an appellate court must apply in reviewing a challenge based upon a denial of a motion for acquittal is the same as a challenge based upon the sufficiency of the evidence to support a conviction. See State v. Bell (May 26, 1994), Cuyahoga App. No. 65356, unreported. In State v. Jenks (1991), 61 Ohio St.3d 259, 273, the Ohio Supreme Court set forth the test an appellate court should apply when reviewing the sufficiency of the evidence to support a conviction. -11- In the present case, the trial court did not err in denying appellant's motion for acquittal. Appellant was convicted of felonious assault, in violation of R.C. 2903.11. R.C. 2093.11 defines assault: "(A) No person shall knowingly: "(1) Cause serious physical harm to another; "(2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordinance, as defined in section 2923.11 of the Revised Code." * * * In a review of the sufficiency of the evidence, the evidence must be considered in a light most favorable to the state. We find the state presented evidence to sustain a conviction for felonious assault. We find reasonable minds could have come to the conclusion that appellant attempted to cause physical harm to the victim. Lt. Skorpys, on cross-examination, testified the appellant told her that the victim, Melinda Goal, bit him and he then struck the victim. Police Officer Dimarco testified that when he informed the appellant that he would be arrested for assault, the appellant explained that the victim smacked him, then he hit the victim a couple of times and that it was just a misdemeanor. Then, the appellant told Police Officer Dimarco that the victim had beaten her head against the wall in the house and that she had been assaulted by unknown individuals. The victim, Melinda Goal, testified that she was assaulted by two unknown individuals in the back alley. The victim also testified that she and the appellant -12- argued. The trial court did not err in denying appellant's Crim.R. 29 motion for acquittal. Appellant's assignment of error is not well-taken. VI. In appellant's third assignment of error, appellant charges that he was denied effective assistance of counsel. In State v. Bradley (1989), 42 Ohio St.3d 136, the Supreme court of Ohio discussed Strickland v. Washington (1984), 466 U.S. 688, 688, 104 S.Ct. 2052, 80 L.Ed. 2d 674 and the holding in State v. Lytle (1976), 48 ohio St.2d 391. The court thereafter developed a two-step process to assist the effectiveness of counsel. First, there must be a determination as to whether defense counsel substantially violated an essential duty to the cliennt. Second, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. Brady, paragraph two of the syllabus. In order to demonstrate prejudice, a defendant must prove there exists a reasoanlbe probability that the result of the trial would have been different is not for counsel's error. Id., paragraph three of the syllabus.If prejudice is not shown, this court need not consider whether there was a failure of an essential duty. Id., 143. In considering an ineffective assistance claim, we are also guided by the strong presumption that counsel's actions were reasonable in light of his "perspective at the time." State v. Cook (1992), 65 Ohio St.3d 516, 524-25. The burden of proving trial -13- counsel's ineffectiveness is on the defendant since, in Ohio, a properly licensed attorney is presumed competent. State v. Smith (1985), 17 Ohio St.3d 98, 100. None of the alleged failures listed by appellant rise to the level of ineffective assistance of counsel. Appellant claims he received ineffective assistance of counsel because counsel failed to call the victim, Melinda Goal as a favorable witness for the appellant. Absent a showing of prejudice, failure to call or question a witness does not deny a defendant effective assistance of counsel. See Id. at the syllabus. In this case, appellant failed to demosntrate he was prejudiced by his defense counsel's decision not to call Melinda Goal. Decisions regarding the calling of witnesses are within the purview of defense counsel's trial tactics. State v. Hunt (1982), 20 Ohio App.3d 310. Appellant also asserts he recieved ineffective assistance of counsel becasue counsel failed to question Ramona Tanner. In the instant case, the victim's best girlfriend, Ramona Tanner, was the witness who flagged down the police officer and told the police officer the victim had been beaten. If trial counsel's performance bears a reasonable relationship to a legitimate trial strategy, this court need not examine whether appellant has been prejudiced. Appellant has not demonstrated We fail to see how Ramona Tanner would have been a witness for the defense and we fail to see how counsel's failure to call her prejudicially affected the appellant. In addition, appellant contends his counsel failed to object to the direct testimony of Police Officer Mary Skorpys when Officer -14- Skorpys stated that in reference to the victim, Melinda Goal, that either her husband or her boyfriend had beat her up real bad. Q. I believe the question was what then did Ramona Tanner state to you? A. Ramona Tanner was very hysterical. And she asked me if I could help her, that her best girlfriend had just been beat up. And she would probably need medical attention, and that we would probably need the ambulance. And I asked where she was, and she said, "I will take you there, she's in the house. " Either her husband or her boyfriend had beat her up real bad. (Tr. 34). This testimony of Police Officer Skorpys was admissable hearsay pursuant to Evid. R. 803. Appellant has not demonstrated the outcome of the trial would have been different had defense counsel objected to the hearsay statement made by Police Officer Mary Skorpys. Finally, appellant contends his counsel failed to object to the trial court's jury instruction which failed to mention the possibility of conviction of the lesser included offense of the crime of aggravated assault. However, defense counsel's failure to seek an instruction on a lesser included offense can be considered a reasonable trial strategy. State v. Moore (1994), 97 Ohio App.3d 137. Given the aforementioned review of the facts, appellant's assignment of error is not well taken. Judgment affirmed. -15- 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 Cuyahoga County 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. PATRICIA ANN BLACKMON, P.J. ANN DYKE, J., CONCUR JUDGE SARA J. HARPER N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .