COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69821 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION ALFRED HARRISON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION AUGUST 22, 1996 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-322133 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES PATRICK A. D'ANGELO, ESQ. Cuyahoga County Prosecutor Marshall & D'Angelo DARCY MOULIN, Assistant 113 St. Clair Avenue Prosecuting Attorney Suite 440 1200 Ontario Street Cleveland, Ohio 44114-1214 Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Alfred Harrison appeals from his conviction following a jury trial for felonious assault (R.C. 2903.11) on an East Cleveland policeman. Defendant contends that his constitutional right to a speedy trial was violated; that the court abused its discretion in excluding evidence to impeach the assaulted officer; and that the conviction is against the manifest weight of the evidence. We find no reversible error and affirm. The State's evidence at trial revealed the following facts. East Cleveland officers Eric Harris and Gary Harper testified that they were on duty on November 25, 1995 when they got a radio call at 9:50 p.m. by Officer Jamie Tavano asking for back-up in regard to a traffic stop. Shortly after the first call, they received a second urgent call from Officer Tavano for help and they rushed to the scene. These officers arrived at 14019 Glenside Road in Cleveland with their zone car lights and sirens on, and the headlights illuminating the scene in which Officer Tavano was confronting the defendant. Officer Harper testified that he heard Officer Tavano ordering the defendant to stay back. Defendant was screaming and yelling. Tavano was trying to hold off the defendant, and while doing so, was retreating from the defendant, who was advancing on him. Harper also witnessed the defendant's friend, William Newsome, - 3 - trying to pull the defendant back from the officer, however, the defendant continued to approach Tavano in an aggressive manner. Defendant was hostile and irate, and refused to obey Tavano's repeated orders for the defendant to lie on the ground. Officers Harris and Harper testified that the defendant then struck Tavano in the face with a closed fist. Tavano fell to the ground and the defendant continued to approach the victim in an aggressive manner, lifting his leg and attempting to stomp on the fallen victim. Officer Harris then grabbed the defendant in an attempt to subdue him, but he would still not comply with orders. Officer Harris continued to try to contain defendant. The two officers finally wrestled defendant to the ground, handcuffed him and placed him in the zone car. Officer Tavano testified that he saw the defendant's car operating at a high rate of speed, weaving back and forth, and crossing left of center, almost causing a collision. He saw the defendant go through a red traffic signal. Officer Tavano followed the defendant from East Cleveland into Cleveland. The defendant pulled his vehicle into the driveway at 14019 Glenside Road where another occupied vehicle was parked. At this point, Officer Tavano radioed in the license plate of the defendant's vehicle and requested assistance. The officer then exited his patrol car and approached the defendant, who was standing in the driveway. - 4 - Officer Tavano questioned the defendant as to where he was going so fast. Defendant responded that he had been partying and wanted to get home. Tavano detected alcohol on the defendant's breath and he asked the defendant to come out of the driveway in front by a street light and the patrol car. Defendant responded to that request by refusing, stating: "F--- that, I'm not going nowhere." Defendant was placing his hands in his pockets, although the officer, for safety purposes, repeatedly requested that the defendant take his hands out of his pockets. Defendant became agitated and belligerent. Tavano attempted to pat the defendant down for his safety and protection, doing a quick outer search of his clothing. He asked defendant to stand against the zone car with his back to Tavano for the pat down. Defendant would not comply with the "pat down" and pushed off the car twice and spun around on the victim, swearing at him. Tavano called for help. The defendant then threatened: "You better get some f------ help because you will need it." Officer Tavano was walking backwards, retreating from the defendant who was approaching. Tavano continued to call for help on his hand radio. While retreating from the defendant's advances, Tavano saw the lights of a car approach and glanced over for a moment to confirm that it was the police back-up he requested. At that point, the defendant swung and punched the victim on the right side of his head, knocking the victim to the ground. The fallen - 5 - Tavano saw Officer Harris struggling to restrain the handcuffed defendant and place him in the zone car. Officer Tavano was taken to the hospital. His skull was broken in three places, requiring surgery under a general anesthetic. This surgery was performed by Dr. Charles Coakwell, III, M.D., who testified to his services at the hospital. Defendant and his friend William Newsome testified that at the Glenside Road scene that defendant was calm and only reacted after Officer Tavano conducted a rough pat down search. That a scuffle ensued with the arresting officers and defendant. He claimed defendant was beaten by the officers and taken to the East Cleveland Police Station where he was booked and released on bond. Ms. Deborah Byrd also testified for defendant as to his condition the following morning when she took pictures of his injuries at his apartment. As noted, defendant was arrested on November 25, 1994, and posted bail that same day. He was indicted on April 14, 1995 for one count of felonious assault with a peace officer specification. His arraignment date was set for May 1, 1995. He failed to appear for that arraignment date and a capias was issued that same day. Defendant was arrested on that warrant by the Sheriff's Department on May 30, 1995. Defendant posted bail on June 1. An arraignment date was then set for June 7, 1995. Defendant appeared and pled not guilty on June 13, 1995. Defendant filed a motion for dismissal for violation of his right to speedy trial on September - 6 - 6, 1995. The motion made no reference to the capias period nor did it claim that defendant was not properly served with summons at his Collamer street address. This motion was overruled by the trial court on September 11, 1995, without a hearing, and trial commenced that same day resulting in the conviction from which defendant pursued this appeal. Defendant's assignments of error will be addressed in the order asserted. I. DEFENDANT-APPELLANT'S RIGHT TO A SPEEDY TRIAL GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION HAVE BEEN VIOLATED. Defendant argues that he was entitled to a dismissal of the pending indictment pursuant to R.C. 2945.71(C)(2) which requires that any person against whom a felony charge is pending "shall be brought to trial within two hundred seventy days after his arrest." R.C. 2945.72 permits the speedy trial time to be extended by: (A) Any period during which the accused is unavailable for hearing or trial ***; (D) Any period of delay occasioned by the neglect or improper act of the accused; (E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused; *** (H) The period of any continuance granted on the accused's own motion, and the period of any reasonable continuance granted other than on the accused's own motion ***. The decision of this Court in State v. Todd (March 31, 1983), Cuyahoga App. No. 45383, unreported, provides guidance for the resolution of the defendant's claims. This Court stated: - 7 - It has long been recognized that an individual's right to a "speedy trial" under Section 10, Article I of the Ohio Constitution and Sixth Amendment to the United States Constitution does not begin to accrue until an arrest or detention on a charge has been made. State v. Cross (1975), 48 Ohio App.2d 357. Thus, the right to a speedy trial in a criminal prosecution means the right to have the charge on which the accused is detained heard speedily, and such right has no relation to the time of the filing of the complaint on which the charge is based. Id. at 358, citing Halcomb v. Eckle (1958), 110 Ohio App. 208, paragraph 1 of the syllabus. The issue presently raised by the State of Ohio to this reviewing court has been previously addressed in the case of State v. Bacsa (Ct. App. Cuy. Cty., June 3, 1982), unreported No. 43997. As in the instant action, the defendant-appellant was initially arrested on September 12, 1979 as a suspect in a homicide, however, was not formally charged with the crime. Appellant was thereafter released from custody the following day, with no formal charges having been initiated against him. On February 17, 1981, appellant was subsequently rearrested in connection with the above-stated homicide offense, and was brought to trial on May 28, 1981. Seeking a dismissal of these charges for failure to comply with the provisions of R.C. 2945.71, appellant raised the claim that the time period within which he was required under the terms of R.C. 2945.71 to be brought to trial had commenced as of the date of his initial September 12, 1979 arrest, thereby making his trial date beyond the speedy trial period as statutorily codified. Ruling appellant's claim incorrect, this court determined that an individual's right to a speedy trial does not arise until one is arrested for the particular offense from which he seeks discharge, State v. Bacsa, supra; and as the appellant's initial September 12, 1979 detention was for investigative purposes, - 8 - without initiation of formal charges, application of R.C. 2945.71 was improper. In analogizing the holding of Bacsa to the case sub judice, the appellant, Michael Todd, was similarly arrested for investigative purposes on February 17, 1981, and released without formal charges having been initiated against him. As such, the trial court's utilization of the initial February 17, 1981 arrest date in calculating whether R.C. 2945.71 speedy trial provisions had been met was an improper application of such statute's provisions. Accordingly, we find that appellant's assigned error is well taken, and we reverse and remand this matter to the trial court for further proceedings consistent with his opinion. We must assume that the 270 day time period initially began to run when defendant was arrested on the pending charge on November 25, 1994 and released on bail that same day. He was indicted on April 17, 1995 and arraignment was set for May 1, 1995. He failed to appear for arraignment and a capias issued. He was arrested on the capias on May 30, 1995 and posted bail on June 1, 1995. He was arraigned on June 13, 1995 and went to trial on September 11, 1995. However, the 270 day time period started anew when the defendant failed to appear in court for his arraignment on May 1, 1995, causing a capias to be issued. An accused who eludes the jurisdiction of a court waives his right to a speedy trial. State v. Bauer (1980), 61 Ohio St.2d 83, 84-85; State v. Gibson (1992), 75 Ohio App.3d 388, 391. The Bauer court held that, where a defendant forfeits an appearance bond, the speedy trial time is recalculated from the time of the rearrest. The issuance of a capias does more than toll the speedy trial time, it starts the - 9 - time period anew. Bauer, supra; see, also, State v. Haynes (1982), 8 Ohio App.3d 119, 121; State v. Atkinson (Feb. 23, 1995), Cuyahoga App. No. 58605, unreported at 3; State v. Threatt (May 13, 1993), Cuyahoga App. Nos. 61619/20/21, unreported at 7-8; State v. Ramey (March 14, 1996), Cuyahoga App. No. 69080, unreported at 15. Under Bauer and its progeny, defendant was brought to trial within 93 days from the time the speedy trial time began to run anew on May 30, 1995. Even if the speedy trial period is run continuously from the date of defendant's original arrest, the defendant was still timely tried. See State v. Broughton (1991), 62 Ohio St.3d 253, 257. Allowing for a tolling period when defendant was on capias and his motion to dismiss, the record is still clear he was tried within 270 days. A calculation of the time chargeable against the State given the scenario of the present case results as follows: EVENT DATE TIME CUMULATIVE Initial arrest 11-25-94 3* 3 Defendant makes 11-25-94 to 156 159 bail 5-1-95 Capias outstanding 5-1-95 to tolled 159 for defendant upon 5-30-95 failure to appear for arraignment Defendant apprehended 5-30-95 to 6* 165 on capias 5-31-95 Defendant makes bail 6-1-95 to 98 263 9-6-95 - 10 - Motion to dismiss 9-6-95 to tolled 263 filed 9-11-95 Motion denied 9-11-95 263 and trial commenced *Days counted 3 for 1 for each day defendant was in jail. Thus, even conceding arguendo, that the speedy trial time ran continuously from the date of original arrest, it is evident that the defendant was timely tried when tolling allowance is made for the capias and motion periods. Defendant argues, however, that the capias period should be charged to the State because he failed to attend his May 1, 1995 arraignment date because of a notice sent telling him to disregard that date and to appear for his arraignment on June 7, 1995. Defendant could not have relied on this notice as he contends that the notice was not sent until May 30, 1995, the date he was apprehended on the capias, at which time he was given a new arraignment date of June 7, 1995. Defendant originally argued in his appellate brief that he failed to attend his May 1, 1995 arraignment date due to a notice sent telling him to disregard that date and to appear for his arraignment on June 7, 1995. When it was pointed out by the State that said notice was dated May 30, 1995, defendant argued that the summons were sent to the wrong address. Defendant argues that his correct address is that address where he was apprehended by the sheriff's department. We also note that defendant never raised the - 11 - capias period or incorrect address claims in its motion to dismiss in the trial court. However, the record below does not contain the summons sent to defendant. In the absence of evidence to show otherwise we must presume the regularity and validity of the trial court's proceedings. State v. Howard (1992), 79 Ohio App.3d 705, 709; State v. Roberts (1991), 66 Ohio App.3d 654, 657. See, also, State v. Render (1975), 43 Ohio St.2d 17, paragraph two of syllabus. The only evidence presented by defendant was a copy of the docket sheet which lists his address differently from the address to which one of the summons was sent. Defendant, however, fails to raise an issue as to that address to which the summons was sent by certified mail. See State v. Stevens (Dec. 22, 1994), Cuyahoga App. No. 67400, unreported. A defendant who has been arrested and released on bail has a duty to provide the court a suitable address where he can be contacted. State v. Booth (Oct. 22, 1992), Cuyahoga App. No. 61601, unreported; State v. McClaine (Sept. 15, 1983), Cuyahoga App. No. 46969, unreported. The defendant's failure to make himself readily available for subsequent appearances by providing a valid address extends the speedy trial time limits pursuant to R.C. 2945.72(D). Booth, McClaine, supra. Assignment of Error I is overruled. - 12 - II. THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO ALLOW DEFENSE COUNSEL TO INTRODUCE SPECIFIC INSTANCES OF CONDUCT BY OFFICER TAVANO THEREBY IMPEACHING HIS CREDIBILITY AND SUPPORTING AN ESSENTIAL ELEMENT OF DEFENDANT- APPELLANT'S DEFENSE. Defendant contends that the trial court erred in not allowing the defense to use an official reprimand from Officer Tavano's personnel file to impeach him and test his credibility. Defendant was attempting to show that Officer Tavano lied about the reasons for following the defendant's vehicle on the night in question. Defendant also denied striking Officer Tavano in the jaw and was attempting to prove that Officer Tavano lied about the events leading to his injuries. Defendant correctly points out that the character trait of a victim's dishonesty is admissible under Evid. R. 404(A)(2) and 405, which state as follows: RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES (A) Character Evidence Generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, subject to the following exceptions: * * * (2) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, *** is admissible; *** (3) Character of Witness. Evidence of the character of a witness on the issue of credibility is admissible as provided in Rules 607, 608, and 609. - 13 - * * * RULE 405. METHODS OF PROVING CHARACTER (A) Reputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross- examination, inquiry is allowable into relevant specific instances of conduct. (B) Specific Instances of Conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim or defense, proof may also be made of specific instances of his conduct. There is no question that in challenging the credibility of the victim, Officer Tavano, these rules allowed for evidence of the official reprimand in the exercise of the court's discretion if it was properly introduced. Based on a review of the record, we find no reference to this reprimand in the defense's cross-examination of Officer Tavano. Nor is there any indication that a proper foundation was otherwise laid for the introduction of this evidence which is attached to appellant's brief but is not contained in the record. Defendant claims on appeal that "the evidence was intended not to demonstrate conforming conduct of Officer Tavano "[but was] an attempt to prove something other than conforming conduct, i.e., that the officer has a character trait for dishonesty *** to impeach the credibility of Officer Tavano." (Applt's Brf. at 9- 10). This contention brings the issue into the focus of Evid. R. 608(B) which states as follows: - 14 - (B) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's character for truthfulness, other than conviction of crime as provided in Evid. R. 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness's character for truthfulness or untruthfulness, *** Thus, the matter of whether the specific conduct relating to the official reprimand was admissible was within the sound discretion of the trial court. State v. Boggs (1992), 63 Ohio St.3d 428. We find no abuse of discretion in the trial court's determination that the reprimand was not relevant to the case and would lead to a distracting inquiry into entirely unrelated matters in the administration of the East Cleveland Police Department. Even if we assume that error occurred in excluding the evidence, the error was harmless. An error in excluding evidence is harmless "if such evidence would not negate the overwhelming proof of defendant's guilt." State v. Gilmore (1986), 28 Ohio St.3d 190, 193; State v. Williams (1983), 6 Ohio St.3d 281. We find that the evidence of Officer Tavano's reprimand would not have changed the jury's verdict. Two other police officers testified as eye-witnesses to the events that led to Officer Tavano's serious injury. Due to the State's substantial evidence of defendant's guilt, any possible error was harmless. Assignment of Error II is overruled. - 15 - III. THE JURY VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant claims that his conviction was against the manifest weight of the evidence. We find no merit to this contention. When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As this Court has stated: The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers of fact. State v. Thomas (1982), 70 Ohio St.2d 79, 24 O.O.3d 150, 434 N.E.2d 1356. If there was sufficient evidence for the triers of fact to find a defendant guilty beyond a reasonable doubt this court will not reverse a guilty verdict based on manifest weight of the evidence. State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied (1989), 489 U.S. 1040, 109 S.Ct. 1177, 103 L.Ed.2d 239. State v. Rios (1991), 75 Ohio App.3d 288, 291. Also, see, State v. Jenks (1991), 61 Ohio St.3d 259, 273. We find the evidence sufficient to sustain the conviction. The jury heard testimony from three police officers that defendant approached Officer Tavano in an aggressive, hostile manner. (Tr. 42, 65-66, 96-97, 109, 164-165). Despite Tavano's attempts to retreat, the defendant struck him with a closed fist that broke the victim's skull in three places. (Tr. 101). The treating physician testified that the injuries suffered were consistent with a strong - 16 - blow made with a fist. (Tr. 336). Although the defendant and his friend offered conflicting testimony of the episode, where the truth lay was for the jury to decide. We will not substitute our judgment for the jury on the strength of this evidence. Assignment of Error III is overruled. Judgment affirmed. - 17 - 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 Court of Common Pleas 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. JAMES D. SWEENEY, P.J., and DAVID T. MATIA, J., CONCUR. JAMES M. PORTER JUDGE 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 .