COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69658 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION WAYNE HUNT, JR., : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 5, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-326033 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Anthony J. Bondra Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Charles M. Morgan, Jr. 11510 Buckeye Road Cleveland, Ohio 44104 Wayne Hunt, Jr. Serial No. 312-087 T.C.I. P.O. Box 901 Leavittsburg, Ohio 44430 -3- NAHRA, J.: Defendant-appellant Wayne Hunt appeals his convictions for felonious assault and domestic violence. Appellant's convictions result from an altercation which occurred on April 21, 1995. On that day, appellant arrived home from work at 5:00 p.m., slept for a while, then began drinking. At approximately 11:30 p.m., he went to his neighbor's house where his wife was visiting a friend. Upon his arrival, appellant, angry that his wife had not come home during the evening, made insulting remarks to his wife's friend. Appellant's wife testified at trial that appellant also made threats to her friend with two kitchen knives in his hands. She stated she managed to obtain the knives from appellant and thereafter tried to hide them beneath her legs as she sat on her friend's couch. However, when her friend's niece entered the home, appellant used the distraction to try to regain possession of the knives by force. Appellant's wife's hand was cut as appellant tried to take the knives away from her. When appellant's wife ordered appellant to leave, the argument moved onto the front porch. There, appellant held one of the knives to his wife's throat and one to her stomach, applied pressure, and threatened to "kill" her "and the baby." Appellant's wife was four months pregnant at the time of the incident. At this point, appellant was startled by the appearance of the niece, and when he turned to look at her, appellant's wife was able to escape -4- from him, calling for her friends to telephone the police as she did so. Appellant ran toward his house; however, first he stopped to cut what he believed was a telephone line. The line was actually a television cable. Two Cleveland Police officers arrived within minutes. The officers observed that appellant's wife was injured and obtained a description of appellant before pursuing him. Shortly thereafter, another officer arrived at the scene. Appellant had returned and was arguing with his wife. Although unarmed, appellant was irate and resisted being arrested. The officers ultimately were compelled to use pepper mace to subdue appellant and to use leg shackles and handcuffs to detain him in a patrol car. Upon his arrest that night, appellant was incarcerated and remained in jail until his indictment on July 17, 1995, eighty- seven days later. Appellant was indicted on two counts, viz., 1) felonious assault, R.C. 2903.11, with three violence specifications and an aggravated felony specification; and 2) domestic violence, R.C. 2919.25, with a furthermore clause for a prior domestic violence conviction and four violence specifications. On July 19, 1995, appellant was arraigned. He entered a plea of not guilty to the charges and was assigned counsel to represent him. -5- The record reflects that later that same day, appellant appeared with counsel before the trial court. The trial court notified appellant that since it was his eighty-ninth day of incarceration, appellant would have to make the decision whether or not to proceed immediately with trial. Appellant's counsel requested "ten minutes." At that point, the trial court noted that since it was late in the afternoon, the prospective panel of jurors might be lost; therefore, trial must proceed if appellant did not wish to sign a speedy trial waiver. Appellant indicated he wished to proceed with trial. Accordingly, appellant was prepared for trial and voir dire began. Jury selection concluded the following morning. Trial then commenced. The state presented the testimony of the three police officers who had responded to the scene of the incident. The following day, since appellant's wife had not appeared, trial was continued for ten days to permit the state to locate her. On July 31, 1995, the state presented the testimony of appellant's wife and a neighbor who, because his television service was suddenly interrupted on the night of the incident, came out of his house and observed appellant "going down the street towards the cops." Thereafter, appellant testified in his own behalf. Appellant admitted that on the night of the incident he had been drinking, he had a confrontation with his wife's friend, he then had a confrontation with his wife, he tore the telephone out to prevent his wife from calling the police, and he resisted arrest. -6- Appellant denied both that he had any knives and that he touched or assaulted his wife. Ultimately, the jury found appellant guilty of the charges. Subsequently, the trial court found appellant guilty of the remaining specifications. Appellant was sentenced to concurrent terms of incarceration of eleven to fifteen years on count one and three to ten years on count two. Appellant has filed a timely appeal of his convictions and presents three assignments of error for this court's review. I. Appellant's first assignment of error states: THE TRIAL COURT VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHTS TO A SPEEDY TRIAL AND EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO APPOINT COUNSEL IN A TIMELY FASHION, THEREBY RESULTING IN A (SIC) UNFAIR TRIAL. Appellant argues his rights to a speedy trial and to effective assistance of counsel were compromised in the instant case. R.C. 2945.71(C)(2) and (E) mandate the time within which a hearing or trial must be held, stating in pertinent part: (C) A person against whom a charge of felony is pending: * * * (2) Shall be brought to trial within two hundred seventy days after his arrest. * * * (E) For purposes of computing time under divisions ... (C) ... of this section, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days .... -7- Applying the statute to the facts of this case, this court notes that appellant was arrested on April 21, 1995, indicted on July 17, 1995 and arraigned two days later on July 19, 1995. Appellant was finally brought to trial on July 20, 1995, which was the ninetieth day of his incarceration. Therefore, since the requirements of R.C. 2945 were met, appellant was not denied his right to a speedy trial. Appellant also asserts that trial counsel was not afforded a reasonable opportunity to prepare his defense, thereby implicating appellant's constitutional right to effective assistance. However, the record fails to support this assertion. In United States v. Cronic (1984), 466 U.S. 648, the court stated in essence that unless all the circumstances surrounding the trial court's appointment of counsel were sufficiently egregious, no single criteria, such as only a short time to prepare a defense, can justify the presumption that counsel was unable to adequately discharge his duties toward the defendant. Rather, counsel's actual performance must be evaluated in order to ascertain whether he failed to function "in a meaningful sense" as the State's adversary. This court must adhere to authority as expressed in the most recent decision of the United States Supreme Court rather than state appellate decisions which predate it. See, e.g., State v. Goins (1975), 47 Ohio App.2d 283; State v. Emory (1983), 12 Ohio App.3d 41. In this case, neither appellant nor his attorney objected to the alacrity with which the trial commenced. Moreover, there were -8- no statements either that counsel was actually unprepared to represent appellant or that appellant was being denied his right to effective assistance of counsel by the proceedings. Cf. State v. Darlington (1993), Cuyahoga App. No. 62076, unreported. Thus, this is not a case in which the surrounding circumstances warrant the presumption that appellant was denied the effective assistance of counsel. United States v. Cronic; supra; cf., Powell v. Alabama (1932), 287 U.S. 45. A review of the complete record demonstrates appellant was represented by an experienced attorney who, by the time trial had commenced, was already knowledgeable about the case and fully prepared to act as defendant's advocate. Counsel conducted an efficient voir dire, cross-examined the state's first witnesses effectively, and when trial was continued, had an additional ten days to prepare and present a plausible defense. Since in the absence of egregious circumstances, ineffective assistance of counsel is not to be presumed but rather must be demonstrated, and the record in this case demonstrates trial counsel provided competent representation to appellant at all stages of the proceedings, appellant's assertion that he received an unfair trial lacks persuasiveness. For the foregoing reasons, appellant's first assignment of error is overruled. II. Appellant's second assignment of error states: -9- THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR DISMISSAL ON THE GROUNDS OF SPEEDY TRIAL AND MOTION FOR CONTINUED VOIR DIRE AFTER A ONE-WEEK RECESS IN TRIAL, THEREBY VIOLATING DEFENDANT-APPELLANT'S RIGHT TO A FAIR AND IMPARTIAL TRIAL. Appellant initially argues his right to a speedy trial was denied when the trial court ordered a continuance prior to the completion of the state's case-in-chief. He contends the continuance served to unreasonably delay his trial. R.C. 2945.72 states in pertinent part: 2945.72 Extension of time for hearing or trial. 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: * * * (H) 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; (Emphasis added.) The record reflects that although a subpoena had been issued to appellant's wife, she failed to appear for trial. The police officers had completed their testimony; the state's case was finished except for the testimony of the victim. Upon learning this, the trial court immediately issued a bench warrant to compel appellant's wife's appearance. Contemporaneously 1 the trial court ordered the continuance. 1 Although the journal entry refers to the continuance as being upon defendant's motion, a close review of the record reveals that actually it was requested by the state. -10- From these facts, it is clear the trial court's intent was to ensure appellant's trial, which had already commenced within the statutory period, could be concluded as quickly as possible. Since both the prosecution and the trial court acted diligently in this matter, the continuance was reasonable. State v. Unger (1981), 67 Ohio St.2d 65 at 67-68; State v. Smith (1981), 3 Ohio App.3d 115; cf. State v. Reeser (1980), 63 Ohio St.2d 189. Appellant further argues that the continuance served to compromise his right to a fair trial, since when trial recommenced the trial court neither admonished the jury nor permitted him to conduct further voir dire. However, the record reflects the members of the jury received an extensive and thorough voir dire when they were empaneled, and, further, prior to opening statements, were completely instructed as to their responsibilities. Since a jury is presumed to have followed the trial court's instructions, appellant's argument fails. Pang v. Minch (1990), 53 Ohio St.3d 186. Accordingly, appellant's second assignment of error is also overruled. III. Appellant's third assignment of error states: THE VERDICT OF THE JURY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND MUST BE REVERSED. Appellant essentially argues with regard to this assignment of error that the evidence regarding his guilt was inconclusive and -11- unreliable pursuant to the guidelines set forth in State v. Mattison (1985), 23 Ohio App.3d 10. In State v. Martin, supra, at 175, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. (Emphasis added.) A reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169; State v. Jenks, supra. Moreover, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. A review of the record in this case demonstrates appellant's convictions for felonious assault and domestic violence were in accord with the manifest weight of the evidence. Appellant's wife testified that during their altercation, appellant's actions caused her to suffer a cut on her hand. -12- Thereafter, appellant held a knife to her throat and to her stomach and stated he would "kill" her "and the baby." Appellant's wife's testimony was corroborated by the police officers. The officers testified they saw appellant's wife's hand was bleeding, appellant seemed to have been drinking, and appellant was so enraged they had to use force to subdue and arrest him. Her testimony was also corroborated by her neighbor, whose television cable service was interrupted by one of appellant's actions that night. Appellant testified in his own defense and gave a different version of the incident; however, it was well within the province of the jury to choose to believe the testimony offered by the state and reject that of appellant. State v. DeHass, supra. Based upon the evidence presented, the jury could properly find appellant guilty of the offenses of felonious assault and domestic violence; thus, the factors in State v. Mattison, supra, are met in this case. The stated presented reliable credible evidence of appellant's guilt, and this court declines appellant's request to substitute its own judgment concerning the credibility of the witnesses and the weight to be given to their testimony. This court, therefore, cannot say that on the basis of the evidence the jury "clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin, supra, at 175. The verdicts of guilty, therefore, were not against the manifest weight of the evidence. State v. Zackery -13- (1987), 31 Ohio App.3d 264; State v. Williams, (Dec. 12, 1991), Cuyahoga App. No. 59636, unreported. State v. Nielsen (1990), 66 Ohio App.3d 609. Accordingly, appellant's third assignment of error is also overruled. Appellant's convictions and sentences are affirmed. -14- 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. BLACKMON, P.J., CONCURS. PATTON, J., CONCURS IN PART AND DISSENTS IN PART. (See attached opinion.) JOSEPH J. NAHRA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69658 STATE OF OHIO : : CONCURRING AND DISSENTING Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION WAYNE HUNT, JR. : : Defendant-appellant : : DATE SEPTEMBER 5, 1996 PATTON, J, CONCURRING IN PART AND DISSENTING IN PART: I respectfully dissent from that part of the majority opinion which finds appellant received effective assistance of counsel under circumstances where the trial court forced appellant's counsel to proceed with trial despite having met his client only minutes before. This uncontradicted lack of preparation constitutes a per se violation of the right to counsel. Appellant's Sixth Amendment right to effective assistance of counsel under the circumstances can be analyzed in one of two ways. Either (1) counsel was assigned at such a late stage of the proceedings that counsel's performance can be presumed to be deficient or (2) counsel's inability to prepare resulted in a demonstrably evident violation of counsel's essential duties to -2- the client. United States v. Cronic (1984), 466 U.S. 648; State v. Johnson (1986), 24 Ohio St.3d 87, 89, fn. 4. These are separate and distinct inquires. If there has been a per se violation of the right to counsel, the court need not consider the totality of the circumstances to determine whether, but for the late appointment, an accused received effective assistance of counsel. The majority's analysis blurs this important distinction by ignoring the fact that the United States Supreme Court made this distinction abundantly clear in Cronic. Thus, although it has refused to apply a per se presumption of incompetence based on short preparation time, it recognized that surrounding circumstances may make it "so unlikely that any lawyer could provide effective assistance that ineffectiveness was properly presumed without inquiry into actual performance at trial." Id. at 661. The point is that occasions may arise: "*** when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial. Id. at 659-650. The court illustrated this principle by citing to Powell v. Alabama (1932), 287 U.S. 45. In Powell, members of the local Alabama bar refused to represent a group of defendants charged with a highly publicized capital offense. On the morning of the trial, an attorney from the state of Tennessee finally did agree to represent the defendants even though he had no opportunity to speak -3- with them or prepare a defense. The Court held "such designation of counsel as was attempted was either so indefinite or close upon the trial as to amount to a denial of effective and substantial aid in that regard." Id. at 53. Likewise, in Avery v. Alabama (1932), 308 U.S. 444, the court recognized denying appointed counsel the opportunity to confer or consult with the accused or prepare a defense before trial could convert the appointment of counsel into a sham and become nothing more than a formal compliance with the Constitution's requirement that an accused be given the assistance of counsel. The seminal case in Ohio regarding ineffective assistance of counsel resulting from an untimely appointment is State v. Goins (1975), 47 Ohio App.2d 283. In Goins, the court found twenty-four hours preparation time "is inconsequential, considered in light of defendant's Sixth Amendment rights to effective assistance of counsel. Twenty-four hours would not contribute substantially to trial preparation time so as to make defendant's attorney completely informed and effective as defense counsel." Id. at 285- 286. This court, too, has recognized and consistently applied this important constitutional principle in several cases. In State v. Emory (1983), 12 Ohio App.3d 41, 42, we held one and one-half (1 1/2) hours is simply insufficient time for counsel to confer with his client and to perform those other duties before trial which are essential to effective representation. Likewise in State v. Pavone (May 5, 1983), Cuyahoga App. No. No. 45202, unreported, we found -4- ineffective assistance of counsel where a juvenile defendant was appointed counsel on the day trial began and counsel had very little time to consult with defendant, had no time to prepare a defense, and no time to investigate the circumstances surrounding the trial. Most recently, we again recognized this important constitutional principle in State v. Darrington (June 3, 1993), Cuyahoga App. No. 62076, unreported, where an experienced attorney was given but two and one-half hours to confer with client and prepare a defense. I would find a per se violation of appellant's right to counsel because defense counsel had literally just met his client only minutes before the court began trial. Any discussion of the facts in this case must necessarily be prefaced with the reality that appellant apparently fell through the cracks of the system, forgotten until just before his speedy trial rights might be violated. The state held appellant in jail without bail for eighty-seven days before the grand jury returned an indictment charging him with felonious assault and domestic violence. On his eighty-ninth day of incarceration, the state apparently realized it needed to take quick action to bring appellant to trial. The trial court hastily arraigned appellant and appointed counsel. Unfortunately, the judge believed appellant had been arraigned on his ninetieth day of confinement without bail (it was, in fact, only the eighty-ninth day of confinement), and mistakenly believed that trial must commence at once. -5- Rather than risk dismissing the case for a speedy trial violation (which I agree did not occur given the fact that trial did commence timely), the court told defendant he could either waive his right to a speedy trial and receive more time to prepare or not waive time and proceed to trial. The following discussion took place between the court, appellant, and appellant's attorney, Mr. King: THE COURT: Mr. Hunt, your file was just brought to the court's attention today and we have to start trial today because apparently this is your 90th day of incarceration. So if you want to go to trial, that's fine. I'll have them take you downstairs and have you changed into civilian clothes. In the meantime we'll have the jury brought up and we'll start trial or you can waive time if you want more time to consult with your lawyer to prepare your case. Those are your two options. MR. KING: We just began discussions. I hope we could have another ten minutes? THE COURT: There is no ten minutes. He's got to be taken downstairs. Its pretty straight forward... MR. KING: We might be able to dispose of the jury if I were to have ten minutes right now. THE COURT: I have to know that if he wants to work out a plea it will have to be after a waiver. I'm not going to be in a position where the jurors are let go at three o'clock. If you want to work out a plea, that's fine, and you're welcome to do so. If he wants -- he's indicating for the record. If you want -6- to waive time, to have more time to prepare for trial, that is your right and your option. THE DEFENDANT: No. THE COURT: You want to start trial? THE DEFENDANT: Sure. THE COURT: Have him taken down. MR. KING: If I could have ten minutes to talk to him we may not need any jury or clothes. THE COURT: I called over to your office as soon as we got this case. He said he wanted to enter a plea. Once I have the jury up here we are going to go forward with the trial. Immediately after this exchange, appellant changed out of his prison apparel and the court began to impanel a jury. The court then recessed for the day and concluded impaneling the jury the following morning. Each side then gave their opening statements and the state began its case by presenting three police officers as witnesses. Factually, this case is very similar to State v. Johnson, supra. In Johnson, the supreme court overturned a conviction in a capital case on grounds of ineffective assistance of counsel because defense counsel failed to conduct any investigation into Johnson's background for purposes of obtaining evidence in mitigation of the death penalty. Counsel informed the court he had not discussed the mitigation presentation with his client and asked -7- the court to permit him ten minutes in which to do so. The court denied the request and proceeded with the penalty phase of the trial. Id. at 88. The supreme court found this complete lack of preparation a per se violation of Johnson's right to adequate representation. Id. at 89-91. The majority's dependence on defense counsel's failure to object to the start of trial is misplaced for two reasons. First, because this is a per se violation of the right to counsel, appellant is not required to show he objected to being forced to proceed with trial absent sufficient time to prepare. Powell, supra. By definition, a per se violation is not dependent upon the preservation of the error below. Second, even if appellant were required to make an objection, the record shows defense counsel did inform the court he needed more time to prepare the case. Just after both sides made their opening statements, defense counsel told the court he discussed a plea bargain with appellant, but appellant rejected any kind of plea: "That is his decision, but [sic] also discussed the fact that this is a last minute case. I got it yesterday. I know the prosecutor is somewhat of the same boat. "Their office generates the file. What I did point out to Mr. Hunt is, if he were willing to waive time on this, I could be more prepared than I am at this time. He has chosen to go forward on that, on the final hour, and very quickly for me, and I want the Court to be aware of that." (emphasis added). -8- Curiously, while the court would not grant appellant any time to prepare his case, the court did permit the state ten days in which to secure the presence of a witness whom it planned to have follow the police officers in its presentation of evidence. When the court reconvened after this long delay, defense counsel again told the court, "[w]e came forward last Wednesday, the ninetieth day, and everybody was a little jackpotted by that. I know Mr. Bondra [the assistant prosecuting attorney] was in the same boat." Counsel's lack of preparation is best exemplified by the court's decision to force appellant to proceed immediately with trial, thus depriving him of the opportunity to conduct discovery of any kind. Under similar circumstances, the United States Supreme Court has found the failure to conduct discovery violated an essential duty owed to the client. In Kimmelman v. Morrison (1986), 477 U.S. 365, 385, the court quoted Strickland v. Washington (1984), 466 U.S. 668, 691, and stated, "[C]ounsel has a duty to make reasonable investigation or to make a reasonable decision that no investigation is necessary." See, also, Johnson, supra, at 90. The record in this case convincingly shows not only that counsel did not affirmatively make a reasonable decision to forego discovery, but in fact informed the court that he "could be bettered prepared," thus showing the court he did need to conduct discovery. The Ohio Supreme Court has recognized "that a duty rests on the trial court, as well as on the defendant's counsel, to take -9- special care to see that an accused's rights are properly protected." State v. Johnson, 24 Ohio St.3d at 91. The trial judge did not hide her motives in forcing appellant to choose between waiving his speedy trial rights or risk going to trial with an unprepared attorney. The trial judge noted she called the public defender's office the morning of the arraignment and "I indicated that this case was close on time, and that it would be set for trial at 1:30 p.m. unless the defendant waived ***." At a later point, the trial judge stated, "[appellant] was given the option of going to trial or continuing the case, and in accordance with his right to have a speedy trial, we started that day *** the defendant did it to himself." The United States Supreme Court has said, "we find it intolerable that one constitutional right should have to be surrendered in order to assert another." Simmons v. United States (1968), 390 U.S 377, 394. When appellant refused to waive his right to a speedy trial, the trial court's haste to conduct a trial at what even it admitted was "the eleventh hour," effectively forced appellant to go to trial with an unprepared attorney. This action effectively deprived appellant of his Sixth Amendment right to effective assistance of counsel. A reasonable compromise under the circumstances would have been for the court to impanel and swear in a jury, and then take an immediate recess. Questions of speedy trial and ineffective assistance of counsel would no longer have been at issue, because trial would have commenced within the ninety day statutory period -10- and defense counsel would have been permitted a reasonable time in which to prepare. During that period, defendant would have had the opportunity to discuss the possibility of a plea, time to formulate a proper cross-examination of the three police officers, and the ability to prepare his case. This procedure would have been more than feasible, especially since the trial court effectively took this action when it recessed trial on the first day and permitted the state ten days to secure the presence of the complaining witness in the case. I would follow binding precedent from both the United States Supreme Court and this court and would sustain the first .