COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73344 STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JOURNAL ENTRY : AND JOHN ASH, JR. : OPINION : Defendant-Appellant : : : : DATE OF ANNOUNCEMENT : SEPTEMBER 3, 1998 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Common Pleas Court Case No. CR-336137 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Assistant Prosecuting Attorney Sherry F. McCreary, Esq. 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: James J. McDonnell, Esq. 936 Terminal Tower Cleveland, Ohio 44113 ICHAEL J. CORRIGAN, J.: John Ash Jr., defendant-appellant, appeals his conviction in he Cuyahoga County Court of Common Pleas of aggravated burglary, -2- elonious assault and four counts of rape (all with violence pecifications). Defendant-appellant raises three errors for review. his court, finding no error, affirms defendant-appellant's onviction. On March 14, 1996, a true bill indictment was issued against efendant-appellant for one count of aggravated burglary in iolation of R.C. 2911.11, one count of felonious assault in iolation of R.C. 2903.11, and four counts of rape in violation of .C. 2907.02. All counts contained a violence specification. A apias was issued for his arrest on April 2, 1996. On March 21, 1997, defendant-appellant was arrested for rape n South Carolina and was held without bond while DNA testing was onducted. On March 24, 1997, the State of Ohio was notified that efendant-appellant could be picked up for return to Ohio. On March 8, 1997, defendant-appellant waived his right to an extradition earing for return to the State of Ohio. Defendant-appellant was returned to this jurisdiction on April , 1997. On May 7, 1997, a pretrial was held and the case was set or trial on May 21, 1997 at defendant-appellant's request. On May 1, trial was re-set for June 30, 1997 at defendant-appellant's equest. At that time, defendant-appellant filed a motion to dismiss or lack of a speedy trial. Defendant-appellant's motion to dismiss as denied and a jury trial began on July 14, 1997. The state called the victim, Crystal King, as its first itness. She testified that on the night of January 17, 1996, she as working at Bugsy's, a dance bar. During the course of the -3- vening she recognized defendant-appellant and another individual. s. King testified that she had previously met defendant-appellant hen the victim's girlfriend, Cynthia Valentine, brought him over o her house approximately two months prior to January 17th. She ssumed defendant-appellant and her girlfriend were still seeing ach other on the night in question. During the course of the evening, defendant-appellant had urchased approximately five beers for the victim and had tipped her pproximately $23.00. She testified that defendant-appellant asked er out several times that evening. Eventually, she told him to come ack to the bar at 2:30 a.m. and they would go to breakfast. When he told him this, she knew that she would not be there since she as off-duty at 2:00 a.m. At approximately 2:00 a.m., the victim drove home and went to leep. At approximately 5:00 a.m., she felt something on her bed. he testified that defendant-appellant grabbed her arm and began eating her making her urinate on herself. The victim stated that hen she recognized her assailant, she thought he was angry for not eing at the bar at 2:30 a.m. She attempted to explain that she got ff work early. However, defendant-appellant denied that he saw her hat night. The victim then testified that defendant-appellant ontinued to beat her and then raped her by penetrating her with his enis three times vaginally and twice with his mouth before he topped. During this period of time, the victim testified she may ave passed out. -4- The victim then testified that when defendant-appellant topped, he began crying and said he was sorry for what he had done ut that he ingested crack cocaine. Defendant-appellant told her hat he broke in through a window in her daughter's bedroom.1 He hen cleaned up the glass and put it in a bucket. Defendant- ppellant then put ice on the victim's bruises and head injuries. The victim testified that defendant-appellant asked her not to all the police. He also offered to get her medicine and to take her ut for breakfast and shopping. After she declined and he left, she alled her mother and told her a man broke into her house and beat er. The victim drove to her mother's house and was then driven to he hospital. At the hospital, a police officer took the victim's tatement, a rape kit was administered, x-rays of her jaw were taken nd photos of her injuries were taken. The State also called the victim's mother as a witness who estified that her daughter called her on the morning of January 18, 996 crying. She testified that her daughter told her she had been eaten and that she was coming over. After the victim came over to er house, the mother testified that there were big bumps on her orehead, both ears were black and blue, her jaw was swollen and one ye was starting to swell. The State also called as witnesses Cynthia Valentine and Rick truck. Both witnesses testified as to the serious nature of the njuries sustained by the victim. Mr. Struck obtained the name of 1The daughter was staying with the victim's mother and grandmother on the night of the crime. -5- efenda nt-appellant through Ms. Valentine and then he gave that nformation to the police. He also testified that when he went to he victim's home later that day, he observed a broken window and lass in a garbage can. Officer Donald Rupanovich was also called as a witness by the tate. He testified that when he was dispatched to the hospital, he bserved that the victim appeared to have been assaulted with ruises and cuts around her face. The officer also testified that fter he was provided with defendant-appellant's name, he proceeded o the residence where he was told defendant-appellant had left own. The State also called Dr. Cynthia Hansel as a witness. Dr. ansel testified that she was one of the doctors who treated the ictim. Dr. Hansel observed that the victim was a woman who had learly been beaten up. She stated: My records particularly indicate that her face was - her face and chest, chest, were really very bruised. She had clearly been in some sort of trauma or an assault. All of the injuries were from blood trauma. There were abrasions and bruises. There were marks across her throat consistent with strangling. There were bruises all over her shoulders and her back. Her jaw was tremendously swollen. She had difficulty closing it. The doctor went on to testify that the victim's right ear was f concern because there was a large purple spot which is indicative f bleeding inside the bone. Her ear sustained cartilage damage and as deformed. The doctor noted that although the victim was given ain killers, the hospital took the unusual step of increasing the osage due to the severe injuries she had sustained. -6- The State's final witness was Detective Pamela Berg of the Sex rimes/ Child Abuse Unit. She testified that the first time she bserved the victim, it was apparent she had been assaulted. She estified that the Forensic Laboratory Report included an xamination of the victim's nightgown which was torn across the ront. Moreover, she stated that after failing to locate defendant- ppellant, a warrant was issued for his arrest. The detective testified that sometime in March of 1996, she was ontacted by the law enforcement officials in South Carolina who nformed her that they had arrested defendant-appellant. She also tated that defendant-appellant was returned to Ohio sometime in 997. At the end of the state's case, defense counsel moved for an cquittal pursuant to Crim.R. 29 which was denied. Defense counsel hen renewed a motion in limine wherein he argued for a limited cope of cross-examination of defendant-appellant. More pecifically, defense counsel argued if defendant-appellant denied e was arrested in South Carolina for rape (which had a somewhat imilar modus operandi), the state should not be able to cross- xamine defendant-appellant concerning his arrest and present ebuttal evidence, i.e., the alleged victim's testimony. The trial ourtstated that if defendant-appellant took the stand and denied e was arrested for rape, the state would be able to cross-examine im concerning this issue and present rebuttal evidence. For this eason, defendant-appellant did not testify. -7- Defense counsel did, however, call two defense witnesses. The irst witness accompanied defendant-appellant to Bugsy's and estified that the relationship between defendant-appellant and the ictim at the bar was pleasant. He further testified that defendant- ppellant purchased approximately five beers for the victim who was eceptiv e to sitting down next to him. He also testified that he alked with defendant-appellant a few days later but there was no ention of an incident between defendant-appellant and the victim. The next witness testified that he had been friends with efendant-appellant for approximately eight years. On the night in uestion, he observed defendant-appellant at Bugsy's at around 12:00 o 12:30 a.m. Defendant-appellant was sitting with the victim having rinks. The witness testified that he left the bar and returned round 2:00 a.m. to give defendant-appellant a ride since he was aving car trouble. He testified that defendant-appellant stated he anted to go over to the victim's house and that he dropped him off t her home at approximately 2:15 to 2:30 a.m. The jury found defendant-appellant guilty on all counts. efendant-appellant stipulated to the aggravated felony pecifications onall counts in a bifurcated hearing. On August 14, 997, defendant-appellant was sentenced to 15-25 years for ggravated burglary, 12-15 years for felonious assault and 15-25 ears on all four counts of rape. All counts were to run onsecutively. Defendant-appellant timely filed this appeal. Defendant-appellant states as his first assignment of error: I. WHETHER OR NOT THE DEFENDANT WAS DENIED HIS RIGHT TO A SPEEDY TRIAL. -8- Defendant-appellant argues his rights to a speedy trial set orth in R.C. 2945.71 were violated. Specifically, defendant- ppellant argues he signed his waiver of extradition on March 28, 997 and he was in custody until the beginning of trial which was uly 24, 1996. Therefore, defendant-appellant argues, the state ailed to bring him to trial within the statutory ninety (90) days. e disagree. The Sixth and Fourteenth Amendments to the United States onstitution, as well as Section 10, Article I of the Ohio onstitution, guarantee a criminal defendant the right to a speedy rial by the state. State v. O'Brien (1987), 34 Ohio St.3d 7. In arker v. Wingo (1972), 407 U.S. 514, 523, 92 S.Ct. 2182, 2188, 33 .Ed.2d 101 112-113, the United States Supreme Court declared that, ith regard to fixing a time frame for speedy trials, [t]he States ** are free to prescribe a reasonable period consistent with onstitutional standards ***. To that end, the Ohio General ssembly enacted R.C. 2945.71 in order to comply with the Barker ecision. See, also, State v. Lewis (1990), 70 Ohio App.3d 624. It is well established that the Ohio speedy trial statute onstitutes a rational effort to enforce the constitutional right o a public speedy trial of an accused charged with the commission f a felony or misdemeanor and shall be strictly enforced by the ourts of this state. State v. Pachay (1980), 64 Ohio St.2d 218. R.C. 2945.71 states in pertinent part: (C) A person against whom a charge of felony is pending: (1) Notwithstanding any provisions to the contrary in Criminal Rule 5(B), shall be -9- accorded a preliminary hearing within fifteen consecutive days after his arrest if the accused is not held in jail in lieu of bail on the pending charge or within ten consecutive days after his arrest if the accused is held in jail in lieu of bail on the pending charge; (2) Shall be brought to trial within two hundred seventy days after his arrest. * * * (E) For purposes of computing time under divisions (A), (B), (C)(2), and (D) 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. This division does not apply for purposes of computing time under division (C)(1) of this section. The Ohio Supreme Court has held that the R.C. 2945.71(E) riple count speedy trial provision is only applicable to those efendants held in jail in lieu of bail solely on the pending harges. State v. Brown (1992), 64 Ohio St.3d 476; State v. Ladd 1978), 56 Ohio St.2d 197; State v. MacDonald (1976), 48 Ohio St.2d 6, paragraph one of the syllabus. Once the statutory limit has expired, the defendant has stablished a prima facia case for dismissal. State v. Howard 1992), 79 Ohio App.3d 705. At that point, the burden shifts to the tate to demonstrate that sufficient time was tolled pursuant to .C. 2945.72. State v. Geraldo (1983), 13 Ohio App.3d 27. In this case, defendant-appellant signed a waiver of xtradition on March 28, 1997. However, contrary to defendant- ppellant 's assertions, that is not the date in which the speedy rial statute begins to run. When an individual is arrested in nother state and is subsequently extradited back to Ohio based upon n outstanding arrest warrant, the speedy trial statute begins to -10- un when the individual is in Ohio and arrested under the Ohio harge. See State v. Adkins (1982), 4 Ohio App.3d 231.2 Therefore, the Ohio speedy trial statute began on April 4, 1997 hen defendant-appellant was returned to Ohio and held in lieu of ail on the pending charges. Therefore, defendant-appellant's trial ust have began no later than July 3, 1997. In this case, however, efendant-appellant's trial began on July 14, 1997 and not July 24th s argued by defendant-appellant. Since the statutory limit has been urpasse d by eleven days, the burden then shifts to the state to emonstrate that sufficient time was tolled pursuant to R.C. 945.72. Geraldo, supra. In this case, the record reveals that trial was scheduled for ay 21, 1997. A continuance was then granted to reset the trial for une 30th at defense counsel's request. This amounts to forty (40) ays which are tolled against the time limit set forth in R.C. 954.71. Since the state only had to account for eleven (11) days, he state has met its burden in demonstrating sufficient time has een tolled against the statute. Defendant-appellant's rights to a peedy trial have not been violated. Defendant-appellant's first ssignment of error is not well taken. Defendant-appellant states as his second assignment of error: II. WHETHER OR NOT THE PROSECUTOR PROVED BEYOND A REASONABLE DOUBT THAT A FELONIOUS ASSAULT OCCURRED. 2This is in contrast to a situation where a defendant is in an out-of-state prison serving a sentence and is subject to the Interstate Agreement on Detainers. R.C. 2963.30. See, also, State v. Mourey (1992), 64 Ohio St.3d 482. -11- Defendant-appellant argues that there was insufficient evidence f serious physical harm as required for felonious assault, R.C. 903.11. Specifically, defendant-appellant argues the victim was reated and released at the hospital and did not require any further edical treatment. Moreover, defendant-appellant states the victim escribed her injuries as bruises, welts, scrapes and that her jaw as swollen. This, he argues, does not constitute serious physical arm. For purposes of this opinion, felonious assault is defined as nowing ly causing serious physical harm to another. R.C. 903.11(A)(1). Serious physical harm is defined in pertinent part y R.C.2901.01(E): (3) Any physical harm which involves some permanent incapacity, whether partial or total, or which involves some temporary substantial incapacity. * * * (5) Any physical harm which involves acute pain of such duration as to result in substantial suffering, or which involves any degree of prolonged or intractable pain. Not only does defendant-appellant fail to cite to any authority upporting his position, but his argument can only be construed as complete mis-characterization of the record. In this case, the ictim testified that she was beaten upon the face repeatedly and hoked to the point of unconsciousness. Moreover, a number of itnesses testified that from viewing the bruises and welts, it was lear that she had been beaten. The doctor ordered x-rays of the ictim's jaw believing it may have been broken. The doctor also estified that as a result of the beating, the victim's ear was -12- eformed. Finally, there were pictures introduced into the record hich demonstratethe severity of the injuries to the victim's head nd throat. Contrary to what defendant-appellant may argue, being severely eaten upon the head causing a deformation of the ear and being hoked to the point of unconsciousness constitutes serious physical arm as defined in R.C. 2903.11. See State v. Czajka (1995), 101 hio App.3d 564. Defendant-appellant's second assignment of error s not well taken. Defendant-appellant states as his third assignment of error: III. THE TRIAL COURT ERRED WHEN IT INCORRECTLY DENIED THE DEFENDANT'S MOTION IN LIMINE. Defendant-appellant appears to argue that the trial court erred hen it denied his motion in limine concerning the scope of the tate's cross-examination of defendant-appellant if he took the tand. This, defendant-appellant argues, denied him his onstitutional right to testify. Again, we note that defendant-appellant has misconstrued the ecord in an attempt to bolster this otherwise meritless argument. t is clear from a review of the record and trial transcript that efense counsel argued if on direct examination defendant-appellant enied he was arrested in South Carolina for rape, the state should ot be able to cross-examine defendant-appellant concerning his rrest and present rebuttal evidence, i.e., the alleged victim's estimony. The trial court correctly responded that if defendant-appellant ook the stand and on direct examination denied he was arrested in -13- outh Carolina for rape, that he would open the door for that topic n cross-examination. It would be proper for the prosecution to ompletely explore a line of questioning initiated by the defendant. tate v. Miller (1988), 56 Ohio App.3d 130; State v. Croom (Jan. 18, 996), Cuyahoga App. No. 67135, unreported. Additio nally, the fact that the trial court denied defense ounsel's motion in limine did not preclude defendant-appellant from estifying. If defendant-appellant was not asked on direct xamination abouthis arrest in South Carolina, the state would not ave been able to cross-examine him on that subject. See Evid.R. 04(d). It is clear from a review of the record that the trial court ttempted to explain this to defense counsel. Defendant-appellant's hird assignment of error is not well taken. Judgment affirmed. -14- It is ordered that appellee recover of appellant its costs erein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court irecti ng the Cuyahoga County Common Pleas Court to carry this udgment into execution. The defendant's conviction having been ffirmed, any bail pending appeal is terminated. Case remanded to he trial court for execution of sentence. A certified copy of this entry shall constitute the mandate ursuant to Rule 27 of the Rules of Appellate Procedure. ATRICIA ANN BLACKMON, A.J. AND ENNETH A. ROCCO, J., CONCUR JUDGE MICHAEL J. CORRIGAN .B. This entry is an announcement of the court's decision. See pp.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will e journalized and will become the judgment and order of the court ursuant to App.R. 22(E), unless a motion for reconsideration with upporting brief,per App.R. 26(A) is filed within ten (10) days of he announcement of the court's decision. The time period for eview by the Supreme Court of Ohio shall begin to run upon the .