COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71337 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JAMES HOGAN : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-334306 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: R. PAUL CUSHION (#0037116) The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JOHN P. PARKER (#0041243) 4403 St. Clair Avenue Cleveland, Ohio 44103 SPELLACY, J.: Defendant-appellant JamesHogan ( appellant ) appeals from his conviction for theft in violation of R.C. 2913.02. Appellant assigns the following errors for review: -2- I. THE TRIAL COURT DENIED THE APPELLANT'S STATUTORY RIGHT TO A SPEEDY TRIAL. II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING COUNSEL THE OPPORTUNITY TO ARGUE THE VALIDITY OF THE PHOTO ARRAY TO THE JURY IN CLOSING ARGUMENT AND THUS VIOLATED THE APPELLANT'S RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT. III. IT WAS PLAIN ERROR AND A VIOLATION OF DUE PROCESS FOR THE DETECTIVE TO BOLSTER THE VICTIM'S CREDIBILITY. IV. THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED CRIM.R. 16 IN ALLOWING A STATE'S WITNESS TO TESTIFY THAT WAS NOT ON THE STATE'S WITNESS LIST. V. THE TRIAL COURT DENIED THE APPELLANT DUE PROCESS WHEN IT DENIED HIS MOTION FOR A HANDWRITING EXPERT AT STATE'S EXPENSE. VI. THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING THE STATE TO VOIR DIRE THAT THE PRESUMPTION OF INNOCENCE DID NOT MEAN THAT THE APPELLANT WAS FACTUALLY INNOCENT AND THUS THE APPELLANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL WAS VIOLATED. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On July 24, 1995, appellant went to Sutton Industrial Hardware in Cleveland and rented a Rug Doctor carpet cleaner worth $1,200.00. John Parker, an employee at the store, checked appellant's driver's license before renting appellant the machine and asked appellant for his address and phone number. Todd Votaw, the owner of Sutton Industrial Hardware, explained the operation of the machine to appellant. When the carpet cleaner was not returned on time, both Parker -3- and Votaw called the phone number listed on the rental agreement but discovered that no one by appellant's name lived there. The police eventually were contacted. In November, the police obtained photographs of appellant. A photo line-up was shown to Votaw and Parker. Both men identified appellant's photograph as that of the man who rented the carpet cleaner in July. Votaw identified appellant in court but Parker was unable to do so. On February 14, 1996, appellant was indicted for theft. He was arrested on February 21, 1996, and released on bail five days later. When appellant failed to appear for a pretrial hearing, a capias was issued for his arrest. Appellant was arrested on that capias on April 6, 1996. He was brought to trial on July 30, 1996, and convicted of theft. II. In his first assignment of error, appellant contends he was denied his constitutional right to a speedy trial. Appellant submits that three hundred ninety days passed from the time of his arrest until he was brought to trial. R.C. 2945.71(C)(2) provides that a defendant against whom a felony is pending must be brought to trial within two hundred seventy days of his arrest. Each day an accused is held in jail in lieu of bail on the pending charge is counted as three days. R.C. 2945.71(E). These statutory provisions are mandatory and must be complied with by the trial court and the state. State v. Montgomery(1980), 61 Ohio St.2d 78. Once a defendant demonstrates that two hundred seventy days have expired, a prima facie case for -4- discharge is established. The state then bears the burden of proving time was extended or tolled under R.C. 2945.72 so that the defendant will be tried in less than the statutory limit. State v. Geraldo (1983), 13 Ohio App.3d 27. If the accused is not brought to trial within the statutory time limit, the defendant is discharged as a matter of law. Any further criminal proceedings against the accused based upon the same actions are barred. State v. Eberhardt (1978), 56 Ohio App.2d 193. The time for trial may be extended by any period of delay occasioned by the neglect or improper act of the accused, R.C. 2945.72(D); any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused, R.C. 2945.72(E); and 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(H). Appellant was arrested on February 21, 1996, and released on bail on February 25, 1996. When appellant failed to appear for a scheduled pretrial, a capias was issued for his arrest. On April 6, 1996, appellant was arrested on the capias. The issuance of a capias does more than toll the speedy trial time, it starts the time period anew. The time is recalculated from the time of the rearrest. State v. Bauer (1980), 61 Ohio St.2d 83. Therefore, the statutory time period within which appellant had to be brought to trial began with his arrest on the capias on April 6, 1996. As the date of the arrest is not included in the speedy trial computation, -5- time for appellant began to run on April 7, 1996. See State v. McCornell (1993), 91 Ohio App.3d 141. As appellant was held in jail from the time of his rearrest until trial commenced on July 30, 1996, the triple count provision of R.C. 2945.71(E) was triggered. Appellant had to be brought to trial within ninety days of his arrest. Between April 7, 1996, and July 30, 1996, one hundred fifteen days elapsed. A trial date of May 20, 1996, was set at appellant's request. On May 16, 1996, appellant filed a motion to suppress statements and a motion for voir dire of the prospective state witnesses. Trial was reset for July 2, 1996, at appellant's request. The state requested the trial be moved to July 3, 1996. The case was called to trial on July 3, 1996. Appellant's motion to suppress was withdrawn. His motion to voir dire witnesses was granted. The hearing on that motion was held from July 3, 1996, until July 5, 1996. The filing of a motion to suppress tolls the time in which a defendant must be brought to trial until a hearing is held on the motion. State v. Bumbalough (1992), 81 Ohio App.3d 408. However, the time period in which a trial court considers a defendant's motion must be reasonable. In determining whether the time spent considering the motion was reasonable, a careful examination of the particular circumstances of the case must be made. Factors to be considered include the complexity of the facts and the difficulty of the legal issues as well as the time constraints placed upon the trial judge's schedule. State v. Arrizola (1992), 79 Ohio App.3d -6- 72. The motions appellant filed on May 16, 1996, tolled the time in which the state and trial court had to bring appellant to trial. The trial court considered the motions on July 3, 1996. Even if one day is charged to the state as it requested the trial date be moved from July 2, 1996, to July 3, 1996, forty-eight days are chargeable to appellant. The time between July 3rd and July 5th are charged to appellant as well as this was when the trial court held the hearing on appellant's motion to voir dire the identification witnesses. Additionally, appellant requested the trial date be moved from May 20, 1996, until July 2, 1996. This request also would toll appellant's speedy trial right. Therefore, an additional fifty-one days are charged to appellant. According to this calculation, appellant was brought to trial within sixty- four days of his arrest. Even without including the rescheduling of the trial due to the trial court's crowded docket, it is clear appellant's speedy trial rights were not violated. Appellant's first assignment of error lacks merit. III. In his second assignment of error, appellant asserts the trial court abused its discretion by not permitting defense counsel to argue the validity of the photo array during closing argument. Appellant argues that the issue of identification was central to the instant case and that the trial court's ruling improperly limited defense counsel's ability to argue his theory of the case. The trial court had ruled that the photo array was non- -7- suggestive and valid earlier in the trial. Appellant does not contend the trial court's determination regarding the photo array was erroneous. Instead appellant argues he should have been permitted essentially to dispute that ruling to the jury during closing argument. As appellant has not raised the trial court's ruling on the validity of the photo array as error, he is foreclosed from assigning as error the trial court's ruling limiting defense counsel from arguing the issue to the jury. Appellant's second assignment of error lacks merit. IV. In his third assignment of error, appellant claims plain error occurred when Detective Sowa answered the prosecutor's question as to how the detective determined Parker and Votaw were victims in this instance. Sowa stated, in part, that he based his assessment on his past experience in dealing with Parker and Votaw as victims. He had found the two to be forthright with information and not hesitant or evasive in any way. Appellant asserts this unobjected to statement was an improper bolstering of the victims' credibility which amounted to plain error. Notice of plain error pursuant to Crim.R. 52(B) is taken with the utmost caution under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Landrum (1990), 53 Ohio St.3d 107, 111. The standard for plain error is whether substantial rights of the accused are so adversely affected that the fairness of the guilt determining process has been undermined. State v. Swanson (1984), 16 Ohio App.3d 375. -8- A review of the record shows that there was no occurrence of plain error in the instant case. The detective merely completely answered the question asked of him. The past reputation of the victims was a part of his investigation. There was no apparent intention to bolster the credibility of Parker or Votaw. There is no showing at all that the guilt determining process was undermined by the detective's answer. Appellant's third assignment of error is meritless. V. In his fourth assignment of error, appellant argues the trial court abused its discretion when it permitted a witness for the state to testify who was not identified on the state's witness list. Appellant submits he was unfairly surprised and prejudiced by the witness. The state called Tanya Brooks as a witness. Brooks was an employee of the Prosecutor's office. The prosecutor had not included Brook's name on its witness list but had informed the defense about the witness two days before trial commenced. The defense was provided with information relevant to the documents about which Brooks would testify. The trial court limited the testimony of the witness to what information would have appeared on appellant's driver's license in July of 1995. In State v. Heinish (1990), 50 Ohio St.3d 231, the court held: In the event the state withholds the name and address of a witness, Crim.R. 16(E)(3) provides for the admissibility of the testimony of the witness if it can be shown that the failure to provide discovery was not willful, foreknowledge of the statement would -9- not have benefitted the defendant in the preparation of the defense, and the defendant was not prejudiced by the admission of the evidence. Id., syllabus. Under Crim.R. 16(E)(3), a trial court has the discretion to determine an appropriate sanction for a discovery violation. Although exclusion is an available sanction, a trial court is not required to impose that sanction. State v. Otte (1996), 74 Ohio St.3d 555, 563. In State v. Czajka (1995), 101 Ohio App.3d 564, this court held the trial court did not abuse its discretion by permitting a witness to testify who was orally disclosed to the defense before trial but was not on the state's witness list. This court found the discovery violation was not done with the intention of surprising the defense and that the testimony was brief and merely corroborative of that of another witness. In the instant case, appellant was made aware the state would call a witness to testify about appellant's driver's license two days before trial. The trial court limited the testimony to the information which would have appeared on appellant's driver's license at the time of the offense. Appellant was not surprised by the testimony. Further, the limited nature of the testimony did not result in any prejudice to appellant or hinder the preparation of his defense. The trial court did not abuse its discretion by permitting Brooks to testify for the state. Appellant's fourth assignment of error lacks merit. VI. -10- In his fifth assignment of error, appellant contends he was denied his due process rights because the trial court denied his motion for a handwriting expert at state's expense. Before trial began, appellant advised his attorney that he had the financial assets to hire a handwriting expert. The defense at first asked for a continuance in order to have the handwriting exemplar performed but appellant then did not want a continuance. Instead, the defense agreed to submit the rental slip for analysis by a handwriting expert paid for by the prosecutor's office. Appellant stated he wanted the prosecutor's office to have the analysis done. Appellant later stipulated to the handwriting exemplar. Frankly, appellant's assignment of error is puzzling based upon the record of the proceedings. The trial court proceeded in this matter according to the expressed wishes of appellant and his counsel. Appellant cannot now assign as error what he agreed to at trial. Pursuant to the invited error doctrine, a party cannot complain of an error that he has invited the court or the other party to make. See In re Estate of Schaffer (1995), 101 Ohio App.3d 620. Appellant's fifth assignment of error is overruled. VII. In his sixth assignment of error, appellant contends the trial court abused its discretion when it allowed the prosecution to ask prospective jurors if he or she understood that the presumption of innocence did not necessarily mean appellant was innocent. Appellant argues that this line of questioning, in effect, allowed -11- the state to lessen its burden of proof by eroding the concept of the presumption of innocence. The manner in which voir dire is conducted lies within the sound discretion of the trial court. State v. Lorraine (1993), 66 Ohio St.3d 414, 418. Counsel has an opportunity to reasonably examine prospective jurors subject to the trial court's right and responsibility to control the proceedings. State v. Durr (1991), 58 Ohio St.3d 86. The standard controlling the trial court's discretion regarding the examination of prospective jurors is one of reasonableness. State v. Bridgeman (1977), 51 Ohio App.2d 105, 109. Counsel may question the panel on matters of applicable law so long as counsel states the law fairly and accurately, and couches it in language that makes it clear that the court is the final arbiter of the law. Id. at 110. The question by the prosecutor was a fair and accurate statement of the law. The prosecutor also often informed the prospective juror that the presumption of innocence could be overcome by the state presenting evidence. The question did not serve to lessen the state's burden of proof. Further, the trial court accurately and completely explained that the state had to present evidence to convince the jury of appellant's guilt beyond a reasonable doubt. The trial court did not abuse its discretion by permitting the prosecutor to ask the prospective jurors about their understanding of the presumption of innocence. Appellant's sixth assignment of error is overruled. -12- Judgment affirmed. 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 appeal 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. DAVID T. MATIA, P.J. and JAMES M. PORTER, J. CONCUR. LEO M. SPELLACY -13- Judge N.B. This 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(B) 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 .