State v. Covington

2021 Ohio 2907

• Court: Ohio Court of Appeals
• Decided: August 25, 2021
• Docket: C-190731
• Status: Published

Opinion

[Cite as State v. Covington, 2021-Ohio-2907.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-190731 TRIAL NO. 19CRB-9641C Plaintiff-Appellee, : O P I N I O N. vs. :

D’ANDRE COVINGTON, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 25, 2021

Andrew W. Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Chris Brown, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

D’Andre Antrion Covington, pro se. OHIO FIRST DISTRICT COURT OF APPEALS

MYERS, Judge.

{¶1} Following a jury trial in which he waived his right to counsel and

represented himself, defendant-appellant D’Andre Covington was found guilty of

falsification and failure to disclose personal information.

{¶2} Covington now appeals, raising three assignments of error. First, he

argues that the trial court erred in failing to dismiss the charges against him because

he was not brought to trial within the allotted speedy-trial time. Second, he argues

that the trial court erred by denying his right to discovery. And third, he argues that

the trial court erred in failing to dismiss the case as a penalty for the state’s failure to

provide him with a bill of particulars.1 Finding no merit to Covington’s arguments,

we affirm the trial court’s judgment.

Speedy Trial

{¶3} In his first assignment of error, Covington argues that the trial court

erred in failing to dismiss the charges against him because he was not brought to trial

within 45 days of his arrest.

{¶4} Ohio has codified a defendant’s constitutional speedy-trial guarantees

in R.C. 2945.71. State v. Cheatham, 1st Dist. Hamilton No. C-200142, 2021-Ohio-

2495, ¶ 11. Pursuant to R.C. 2945.71(D), “[a] person against whom one or more

charges of different degrees, whether felonies, misdemeanors, or combinations of

felonies and misdemeanors, all of which arose out of the same act or transaction, are

1Covington also alleges in this third assignment of error that his case should have been dismissed for failure to prosecute, prosecutor misconduct, judicial misconduct, cruel and unusual punishment and selective prosecution. Covington, however, fails to make any substantive argument or point to any part of the record supporting these claims, so we do not address them. See App.R. 12(A)(2) and App.R. 16(A)(7).

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pending shall be brought to trial on all of the charges within the time period required

for the highest degree of offense charged.” Covington was charged with failure to

disclose personal information, a misdemeanor of the fourth degree in violation of

R.C. 2921.29, and falsification, a misdemeanor of the first degree in violation of R.C.

2921.13.

{¶5} The highest degree of offense with which Covington was charged was a

misdemeanor of the first degree. R.C. 2945.71(B)(2) provides that an offender

charged with a misdemeanor of the first degree must be brought to trial within 90

days of the offender’s arrest or the service of summons. So, contrary to Covington’s

assertion, the state had to bring Covington to trial on all charges within 90 days of

his arrest or the service of summons, and not 45 days.

{¶6} Covington was arrested on April 20, 2019, and brought to trial on

November 13, 2019. Because he was brought to trial after the 90-day period set forth

in R.C. 2945.71(B)(2) expired, a prima facie violation of the speedy-trial statute was

established, and “[t]he state bears the burden to show that actions or events

chargeable to the defendant have tolled enough time so that the defendant was tried

within the speedy-trial period.” State v. Gage, 2018-Ohio-480, 104 N.E.3d 994, ¶ 7

(1st Dist.).

{¶7} The time within which an offender must be brought to trial is extended

only in certain enumerated situations. R.C. 2945.72. As relevant to this appeal, it is

extended by “[a]ny period of delay necessitated by reason of a plea in bar or

abatement, motion, proceeding, or action made or instituted by the accused” and

“[t]he period of any continuance granted on the accused’s own motion, and the

3 OHIO FIRST DISTRICT COURT OF APPEALS

period of any reasonable continuance granted other than upon the accused’s own

motion.” R.C. 2945.72(E) and (H).

{¶8} Covington was arrested on April 20, 2019, and the speedy-trial time

began to run the following day. See Gage at ¶ 9. On April 24, 2019, Covington filed a

motion for a continuance, and the case was continued until May 23, 2019. While the

three-day period between April 21 and April 24 counted against the state for speedy-

trial purposes, the time that elapsed from April 24 until May 23 was not chargeable

to the state because the case was continued upon Covington’s motion. See R.C.

2945.72(H).

{¶9} Before returning to court on May 23, Covington filed multiple pretrial

motions, including a request for discovery on May 14. He additionally filed “a

motion to request for taxpayer identification number and certification,” a motion for

a more definite statement, a “motion for MAPP hearing,” and a “motion to sever[]

defendants.” When the parties appeared in court on May 23, 2019, the trial court

acknowledged the motions that Covington filed and continued the case until June 13,

2019, for a hearing on the motions. Because this delay was attributable to motions

filed by Covington, the speedy-trial time was extended during this period. See R.C.

2945.72(E).

{¶10} At the hearing on June 13, the trial court ruled on Covington’s motions

and the case was continued for trial until July 8, 2019, to give the state additional

time to provide discovery. This 25-day period was attributable to the state and

counted towards the 90-day period it had in which to bring Covington to trial.

{¶11} When the parties returned to court for the July 8 trial setting, they

discussed the discovery that was provided to Covington. Covington stated that he

4 OHIO FIRST DISTRICT COURT OF APPEALS

had not received a body-camera video that the state represented had been mailed to

him on July 3, 2019. The state produced a copy of the video in court and gave it to

Covington. The trial court then continued the case for trial at its own request to

allow Covington time to review the video. The record contains an “entry extending

time provisions” signed by Covington indicating that he “knowingly and voluntarily”

extended the time limitations to bring him to trial from July 8, 2019, until August 19,

2019. Because the case was continued on the court’s own request and was

reasonable, and because Covington voluntarily extended the time limitations to bring

him to trial, the time that elapsed during this period was not attributable to the state.

See R.C. 2945.72(H); Gage, 2018-Ohio-480, 104 N.E.3d 994, at ¶ 10 (where a

defendant knowingly and voluntarily extends the time limitations to be brought to

trial, the time is not chargeable to the state).

{¶12} In the interim, the parties returned to court on August 1, 2019. At that

time, the trial court recognized that Covington had filed a jury demand. Since the

case had originally been set for a bench trial, the court directed the assignment

commissioner to set the case for a pretrial conference in order to then have it reset

for a jury trial. Covington expressed to the court that he was considering hiring an

attorney. The trial court converted the previously scheduled trial date of August 19,

2019, into a pretrial conference, in order to allow Covington time to consult with an

attorney.

{¶13} On August 16, 2019, Covington filed a motion for a continuance of the

pretrial conference set for August 19 because he was “waiting on documents from

council and city.” At the pretrial conference on August 19, the trial court granted

Covington’s motion and continued the case until September 6, 2019, for a pretrial

5 OHIO FIRST DISTRICT COURT OF APPEALS

conference. The court stated that Covington needed to decide by September 6

whether he would be represented by an attorney. Because the continuance was at

Covington’s request, the time that elapsed during this period was not chargeable to

the state. See R.C. 2945.72(H).

{¶14} The parties returned to court on September 6, and Covington told the

court that he had not yet hired counsel. The trial court continued the case until

September 18, 2019, for a jury trial and instructed Covington to be prepared for trial,

regardless of whether he hired counsel or represented himself. Because this 12-day

period was the result of a reasonable continuance ordered by the court, it was not

chargeable to the state. See R.C. 2945.72(H).

{¶15} On September 18, the parties appeared for the scheduled jury trial.

Covington informed the court that he had appointments scheduled in the afternoon

and had to leave the courtroom by 1:00 p.m. After the trial court informed him that

the proceedings would continue until approximately 4:00 p.m., Covington requested

a continuance. The state objected, stating that it was ready to proceed. The trial

court granted Covington’s request for a continuance. The case was scheduled for a

jury trial on November 13, 2019. The record contains an entry signed by Covington

indicating that he voluntarily extended the time period in which to bring him to trial

from September 18, 2019, until November 13, 2019. Because the continuance was

requested by Covington and because he voluntarily waived his speedy-trial rights

during this period, it was not chargeable to the state. See Gage, 2018-Ohio-480, 104

N.E.3d 994, at ¶ 10. On November 13, a jury was sworn in and Covington was

brought to trial.

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{¶16} Following our review of the record, we find that from the date

Covington was arrested until the November 13, 2019 trial date, at most 28 days

chargeable to the state elapsed.2 Covington was thus tried within the 90-day speedy-

trial period, and the trial court did not err in failing to dismiss the charges against

him based on the alleged violation of his right to a speedy trial. The first assignment

of error is overruled.

Discovery

{¶17} In his second assignment of error, Covington argues that the trial court

erred by denying his right to discovery. He contends that the trial court should have

dismissed the charges against him when the state failed to disclose evidence,

specifically the dash-cam footage that he had requested. We review a trial court’s

decision in a discovery matter for an abuse of discretion. State v. Baber, 1st Dist.

Hamilton No. C-190338, 2021-Ohio-1506, ¶ 19; Mauzy v. Kelly Servs., Inc., 75 Ohio

St.3d 578, 592, 664 N.E.2d 1272 (1996). An abuse of discretion connotes an

“unreasonable, arbitrary, or unconscionable decision.” Cornell v. Shain, 1st Dist.

Hamilton No. C-190722, 2021-Ohio-2094, ¶ 36, quoting Blakemore v. Blakemore, 5

Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶18} Covington filed a motion for discovery on May 14, 2019. In this

motion, he requested various items, including all video from “body and dash cams.”

The state responded to Covington’s motion for discovery on May 23, 2019. The

response indicated that the body-worn camera video and cruiser video had been

2 Even if the 42-day period that elapsed between July 8 and August 19 (for which Covington knowingly and voluntarily extended the time to bring him to trial) counted against the state while it waited to receive the video evidence that Covington requested in discovery, Covington was still brought trial to trial within the 90-day speedy-trial period, as at most 70 days chargeable to the state would have elapsed.

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requested, and would be forwarded upon receipt. During a pretrial conference on

May 23, 2019, the parties discussed Covington’s discovery requests with the court.

The state represented that it had complied with Crim.R. 16 and provided Covington

with all materials to which he was entitled. It explained that it had requested the

body-worn camera and cruiser videos, but had yet to receive them. The trial court

found that pending completion of the discovery, the state had complied with its

obligation under Crim.R. 16.

{¶19} At a subsequent hearing on June 13, 2019, the court asked for an

update on the state’s production of the requested video evidence. The prosecutor

stated that he had received an unredacted version of the body-worn camera video,

but was still awaiting the redacted version, which would be forwarded to Covington

upon receipt.3 Covington asked if he could move to dismiss the charges because he

had yet to receive the video evidence, but the trial court stated that because the state

was in the process of complying with the discovery demand, and because the case

was still within a reasonable time for the production of discovery, it was going to give

the state the opportunity to do so. The court instructed the state to produce the

evidence by July 3, 2019. The state confirmed that the evidence needed to be

postmarked by that date.

{¶20} When the parties returned to court on July 8, 2019, the state

represented that the body-worn camera video was mailed to Covington on July 3.

Covington stated that he had not received the evidence. The state then provided

Covington with a copy of the video in court. After Covington expressed frustration

3 The video needed to be edited to blur an officer’s mobile computer and notes which contained personal identifying information not otherwise discoverable. The court reviewed the unedited video and agreed it should be redacted.

8 OHIO FIRST DISTRICT COURT OF APPEALS

about the delay in receiving the video, the court stated, “There are reasons why just

kind of anecdotally with the advent of the body worn cameras, the City of Cincinnati

is inundated with requests for the body worn camera. They don’t have enough

people to process it. So therefore the courts, all of the judges in this Courthouse give

latitude to the City when it comes to the request for the production of that

information.” It further explained that “[w]e are not trying this case by surprise. I

give them the opportunity because I want you to have that evidence. If there is

evidence that shows you are not guilty of this, and it bears out in that body worn

camera, you should have the right to have that. So that’s the approach I am taking

and I think it is fair for both sides to handle it that way.” The court then continued

the case at its own request to give Covington time to review the video evidence.

{¶21} At a hearing on August 1, 2019, Covington told the court that the video

he received did not contain the “dash cam stop.” The state responded that it gave

Covington all the evidence in its possession. The court indicated that Covington was

entitled to the dash-cam video if it was maintained. It stated that:

You have got to understand this. Okay. You made a demand for

discovery. The prosecution provides the response to the discovery.

The prosecution represents the city but the police department

maintains those items, maintains that evidence. It gets to a prosecutor

by request. All right. [The prosecutor] said that if they have it. They

can’t miraculously make it appear. If they have it, they will turn it

over. If they had it and didn’t turn it over and it’s been deleted, then

you can raise an issue in that regard with a separate motion. However,

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I simply want to make sure that you have received the information the

prosecutor has.

The court instructed the state to inquire again into whether dash-cam video existed.

Covington filed no additional motions regarding the dash-cam video, and during a

pretrial conference on August 19, 2019, the prosecutor stated that it had given

Covington “all of the copies of the video that [it] had.”

{¶22} Following our review of the record, we find no abuse of discretion on

the part of the trial court in its handling of the discovery issues. It was reasonable for

the trial court to extend the time for the state to produce the requested video

evidence until July 3. When extending the time for the state to produce the video

evidence, the court recognized that the city was inundated with requests for body-

worn camera evidence and explained that because the city lacked enough employees

to process those requests, the court granted latitude to the city regarding the

production of that information. It was also reasonable for the trial court to order the

state to inquire further into the existence of the dash-cam video. The trial court

informed Covington that he had the right to file an additional motion regarding the

dash-cam video if the parties learned that the video existed but the state had failed to

produce it, or if it once existed and had since been destroyed. Covington failed to file

any additional motions regarding discovery, such as a motion for sanctions for

failure to produce evidence, the destruction of evidence, or the failure to maintain

evidence.

{¶23} There was nothing arbitrary, unreasonable, or unconscionable in the

trial court’s handling of the discovery issues. The second assignment of error is

accordingly overruled.

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Bill of Particulars

{¶24} In his third assignment of error, Covington broadly asserts that “the

trial court erred by denying appellant’s motions to dismiss for failure to prosecute,

failure to provide bill of particulars, prosecutor misconduct, judicial misconduct and

cruel and unusual punishment by selectively prosecuting with prejudice and

discrimination.” However, in support of this assignment of error he only advances

arguments supporting his contention that the state failed to provide him with a bill of

particulars.

{¶25} Pursuant to both App.R. 12(A)(2), which provides that “[t]he court

may disregard an assignment of error presented for review if the party raising it fails

to identify in the record the error on which the assignment of error is based or fails to

argue the assignment separately in the brief, as required under App.R. 16(A),” and

App.R. 16(A)(7), which provides that an appellant must provide an argument and

“the reasons in support of the contentions, with citations to the authorities, statutes,

and parts of the record on which appellant relies,” we only address Covington’s

arguments concerning the state’s failure to provide a bill of particulars.

{¶26} At a hearing on May 23, 2019, the trial court stated that it would not

permit Covington to file any additional motions absent leave of court. Covington

filed a motion for a bill of particulars on July 16, 2019, after the court’s motion

deadline and without leave of court. The trial court never entered a ruling on this

motion, so we presume that it was overruled. See Rummelhoff v. Rummelhoff, 1st

Dist. Hamilton No. C-190355, 2020-Ohio-2928, ¶ 28.

{¶27} A conviction should only be reversed for the failure to provide a timely

requested bill of particulars where the appellant establishes that his “lack of

11 OHIO FIRST DISTRICT COURT OF APPEALS

knowledge concerning the specific facts a bill of particulars would have provided him

actually prejudiced him in his ability to fairly defend himself.” State v. Chinn, 85

Ohio St.3d 548, 569, 709 N.E.2d 1166 (1999); Shadyside v. Givens, 7th Dist. Belmont

No. 18 BE 0046, 2021-Ohio-1375, ¶ 39. The purpose of a bill of particulars is to

provide a defendant with the specific nature of the offenses charged and the conduct

alleged to constitute the offenses. Shadyside at ¶ 40. If that same information is

provided in the complaint, the failure to provide a bill of particulars is harmless. Id.

{¶28} The complaint filed against Covington alleged that Covington, in an

official proceeding and with purpose to mislead a public official in performing her

official function, knowingly made a false statement by stating to the arresting officer

that his name was D’Andre Antrion. The information in the complaint provided

Covington with the nature of the offense charged and his conduct that allegedly

constituted the offense. Not only was Covington’s motion for a bill of particulars not

timely filed and done without leave of court, but any error in failing to provide him

with the bill of particulars was harmless because he obtained the same information

from the complaint.

{¶29} The third assignment of error is overruled, and the judgment of the

trial court is affirmed.

Judgment affirmed.

ZAYAS, P.J., and WINKLER, J., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.