[Cite as State v. Rocha, 2014-Ohio-495.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99826
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
ARTHUR ROCHA DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-568953
BEFORE: E.T. Gallagher, J., Boyle, A.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: February 13, 2014 ATTORNEYS FOR APPELLANT
Robert L. Tobik Cuyahoga County Public Defender
BY: John T. Martin Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
BY: Erin Stone Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Arthur Rocha (“Rocha”), appeals three convictions.
We find no merit to the appeal and affirm.
{¶2} Rocha was charged with various offenses in two separate cases: CR-568920
and CR-568953.1 The indictments in these cases, which were joined for trial, charged
Rocha with two counts of aggravated burglary, aggravated menacing, intimidation of a
crime victim, criminal damaging, and drug possession.
{¶3} The victim, Floyd Samples (“Samples”), testified at trial that Rocha visited
his mentally disabled roommate at their house in Cleveland a few times over a period of
years. However, because Rocha would “get an attitude” while visiting, Samples stopped
inviting him into the house. Rocha came to Samples’s house unannounced
approximately six times, and Samples refused to let him in. During these times, Rocha
banged on the door and windows and yelled threats.
{¶4} On July 27, 2012, Rocha came to Samples’s front door and Samples
instructed him to leave the property. Rocha “started cussing” and “kicked the door in.”
Rocha was holding a knife with a three-to four-inch blade when he came through the
door, and Samples called the police, but Rocha left the house before they arrived.
1 CR-568920 contains the superseding indictment for CR-565669. CR-568953, which is the instant case, contains the superseding indictment in CR-565296. CR-565296 and CR-565669 were dismissed when trial commenced in CR-568953. Samples described Rocha’s appearance and location to the police who apprehended him
within minutes.
{¶5} The police transported Rocha to Samples’s house, and Samples identified him
as the man who broke into his house and threatened him. In the presence of Officers
John Romoga (“Romoga”), Anthony Tatum (“Tatum”), and other officers of the
Cleveland Police Department, Rocha screamed the following threats at Samples: “I’ll get
you for calling the cops, you fucking bitch, cop-snitching bitch,” and “You cop-snitching
bitch, I’ll be back for you.” According to Tatum, after being told to quiet down, Rocha
screamed: “You’re all going to find him with broken arms, legs, and mouth.”
{¶6} Prior to the conclusion of trial, the state dismissed the drug possession
charge. The jury found Rocha not guilty of the two burglary charges but guilty of
aggravated menacing, intimidation of a crime victim, and criminal damaging. The court
sentenced Rocha to three years in prison for intimidation of a crime witness, a
third-degree felony, to be served concurrently with jail sentences of 180 days on the other
two counts. Rocha now appeals and raises two assignments of error.
Ineffective Assistance of Counsel and Speedy Trial
{¶7} In the first assignment of error, Rocha contends he was denied his
constitutional right to the effective assistance of counsel. He contends that had his trial
counsel not delayed in responding to the state’s discovery requests, which tolled speedy
trial time, the charges against him would have been dismissed on speedy trial grounds. {¶8} To prevail on a claim of ineffective assistance, the defendant must establish
that counsel’s performance was deficient and that the defendant was prejudiced by the
deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).
Counsel will only be considered deficient if his or her conduct fell below an objective
standard of reasonableness. Strickland at ¶ 688.
{¶9} When reviewing counsel’s performance, an appellate court must be highly
deferential and “must indulge a strong presumption that counsel’s conduct [fell] within
the wide range of reasonable professional assistance.” Strickland at 689. To establish
resulting prejudice, a defendant must show that the outcome of the proceedings would
have been different but for counsel’s deficient performance. Id. at 694.
{¶10} Under R.C. 2945.71(C)(2), the state is required to bring a defendant to trial
on felony charges within 270 days of arrest. State v. Taylor, 98 Ohio St.3d 27,
2002-Ohio-7017, 781 N.E.2d 72, ¶ 31-32. Under the “triple count provision” contained
in R.C. 2945.71(E), each day a defendant is held in jail in lieu of bail counts as three days
in the speedy trial time calculation. Id. Thus, a defendant held in jail without bail
pending a felony charge, must be tried within 90 days. Speedy trial time may be tolled
by certain events delineated in R.C. 2945.72, including continuances at the defendant’s
request and where the defendant causes delay. R.C. 2945.72(D) and (H).
{¶11} Rocha argues that defense counsel’s delay in responding to the state’s
discovery requests beyond 30 days tolled the speedy trial clock for an unreasonable period of time. He contends that if counsel had responded to discovery in a more timely
fashion, speedy trial time would have expired before trial, and Rocha would have been
discharged. However, a trial court has an inherent right to control its own docket and
trial schedule. State v. Powell, 49 Ohio St.3d 255, 259, 552 N.E.2d 191 (1990).
Rocha’s argument assumes the trial court would not have rescheduled the trial within the
speedy trial period to prevent the expiration of speedy trial time if the time had not been
tolled by defense counsel’s delay. This argument is based on pure speculation. We
therefore cannot say there was a strong probability that but for counsel’s delay, the
outcome would have been different.
{¶12} The first assignment of error is overruled.
Sufficiency of the Evidence
{¶13} In the second assignment of error, Rocha argues the evidence adduced at
trial is insufficient to sustain his intimidation of a crime victim conviction. He contends
Rocha’s threatening statements cannot establish that he had the “specific intent to alter
the victim’s conduct in relation to reporting or prosecuting the crime.”
{¶14} Crim.R. 29(A) provides for a judgment of acquittal “if the evidence is
insufficient to sustain a conviction of such offense or offenses.” The test for sufficiency
requires a determination of whether the prosecution met its burden of production at trial.
State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. The relevant
inquiry is whether, after viewing the evidence in a light most favorable to the prosecution,
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[Cite as State v. Rocha, 2014-Ohio-495.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99826
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
ARTHUR ROCHA DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-568953
BEFORE: E.T. Gallagher, J., Boyle, A.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: February 13, 2014 ATTORNEYS FOR APPELLANT
Robert L. Tobik Cuyahoga County Public Defender
BY: John T. Martin Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
BY: Erin Stone Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Arthur Rocha (“Rocha”), appeals three convictions.
We find no merit to the appeal and affirm.
{¶2} Rocha was charged with various offenses in two separate cases: CR-568920
and CR-568953.1 The indictments in these cases, which were joined for trial, charged
Rocha with two counts of aggravated burglary, aggravated menacing, intimidation of a
crime victim, criminal damaging, and drug possession.
{¶3} The victim, Floyd Samples (“Samples”), testified at trial that Rocha visited
his mentally disabled roommate at their house in Cleveland a few times over a period of
years. However, because Rocha would “get an attitude” while visiting, Samples stopped
inviting him into the house. Rocha came to Samples’s house unannounced
approximately six times, and Samples refused to let him in. During these times, Rocha
banged on the door and windows and yelled threats.
{¶4} On July 27, 2012, Rocha came to Samples’s front door and Samples
instructed him to leave the property. Rocha “started cussing” and “kicked the door in.”
Rocha was holding a knife with a three-to four-inch blade when he came through the
door, and Samples called the police, but Rocha left the house before they arrived.
1 CR-568920 contains the superseding indictment for CR-565669. CR-568953, which is the instant case, contains the superseding indictment in CR-565296. CR-565296 and CR-565669 were dismissed when trial commenced in CR-568953. Samples described Rocha’s appearance and location to the police who apprehended him
within minutes.
{¶5} The police transported Rocha to Samples’s house, and Samples identified him
as the man who broke into his house and threatened him. In the presence of Officers
John Romoga (“Romoga”), Anthony Tatum (“Tatum”), and other officers of the
Cleveland Police Department, Rocha screamed the following threats at Samples: “I’ll get
you for calling the cops, you fucking bitch, cop-snitching bitch,” and “You cop-snitching
bitch, I’ll be back for you.” According to Tatum, after being told to quiet down, Rocha
screamed: “You’re all going to find him with broken arms, legs, and mouth.”
{¶6} Prior to the conclusion of trial, the state dismissed the drug possession
charge. The jury found Rocha not guilty of the two burglary charges but guilty of
aggravated menacing, intimidation of a crime victim, and criminal damaging. The court
sentenced Rocha to three years in prison for intimidation of a crime witness, a
third-degree felony, to be served concurrently with jail sentences of 180 days on the other
two counts. Rocha now appeals and raises two assignments of error.
Ineffective Assistance of Counsel and Speedy Trial
{¶7} In the first assignment of error, Rocha contends he was denied his
constitutional right to the effective assistance of counsel. He contends that had his trial
counsel not delayed in responding to the state’s discovery requests, which tolled speedy
trial time, the charges against him would have been dismissed on speedy trial grounds. {¶8} To prevail on a claim of ineffective assistance, the defendant must establish
that counsel’s performance was deficient and that the defendant was prejudiced by the
deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).
Counsel will only be considered deficient if his or her conduct fell below an objective
standard of reasonableness. Strickland at ¶ 688.
{¶9} When reviewing counsel’s performance, an appellate court must be highly
deferential and “must indulge a strong presumption that counsel’s conduct [fell] within
the wide range of reasonable professional assistance.” Strickland at 689. To establish
resulting prejudice, a defendant must show that the outcome of the proceedings would
have been different but for counsel’s deficient performance. Id. at 694.
{¶10} Under R.C. 2945.71(C)(2), the state is required to bring a defendant to trial
on felony charges within 270 days of arrest. State v. Taylor, 98 Ohio St.3d 27,
2002-Ohio-7017, 781 N.E.2d 72, ¶ 31-32. Under the “triple count provision” contained
in R.C. 2945.71(E), each day a defendant is held in jail in lieu of bail counts as three days
in the speedy trial time calculation. Id. Thus, a defendant held in jail without bail
pending a felony charge, must be tried within 90 days. Speedy trial time may be tolled
by certain events delineated in R.C. 2945.72, including continuances at the defendant’s
request and where the defendant causes delay. R.C. 2945.72(D) and (H).
{¶11} Rocha argues that defense counsel’s delay in responding to the state’s
discovery requests beyond 30 days tolled the speedy trial clock for an unreasonable period of time. He contends that if counsel had responded to discovery in a more timely
fashion, speedy trial time would have expired before trial, and Rocha would have been
discharged. However, a trial court has an inherent right to control its own docket and
trial schedule. State v. Powell, 49 Ohio St.3d 255, 259, 552 N.E.2d 191 (1990).
Rocha’s argument assumes the trial court would not have rescheduled the trial within the
speedy trial period to prevent the expiration of speedy trial time if the time had not been
tolled by defense counsel’s delay. This argument is based on pure speculation. We
therefore cannot say there was a strong probability that but for counsel’s delay, the
outcome would have been different.
{¶12} The first assignment of error is overruled.
Sufficiency of the Evidence
{¶13} In the second assignment of error, Rocha argues the evidence adduced at
trial is insufficient to sustain his intimidation of a crime victim conviction. He contends
Rocha’s threatening statements cannot establish that he had the “specific intent to alter
the victim’s conduct in relation to reporting or prosecuting the crime.”
{¶14} Crim.R. 29(A) provides for a judgment of acquittal “if the evidence is
insufficient to sustain a conviction of such offense or offenses.” The test for sufficiency
requires a determination of whether the prosecution met its burden of production at trial.
State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. The relevant
inquiry is whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus.
{¶15} R.C. 2921.04(B) states, in relevant part:
No person, knowingly and by force or by unlawful threat of harm to any person or property or by unlawful threat to commit any offense or calumny against any person, shall attempt to influence, intimidate, or hinder * * * [t]he victim of a crime or delinquent act in the filing or prosecution of criminal charges.
(Emphasis added.) The term “hindering” suggests an intent to prevent the victim from
reporting a crime or following through with criminal prosecution. However, the statute
also prohibits one from attempting to influence the victim and from threatening a victim,
regardless of an intent to hinder the victim. The General Assembly’s use of the
disjunctive “or,” as opposed to the conjunctive “and,” indicates the legislature intended
the three prohibited acts to be read separately from each other. Columbia Gas Transm.
Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 20 (holding that
legislative use of disjunctive “or,” as opposed to the conjunctive “and,” indicates that the
classifications are intended to be read separately from each other.)
{¶16} Thus, despite Rocha’s argument to the contrary, proof of “specific intent to
alter the victim’s conduct in relation to reporting or prosecuting the crime” is not
necessarily required under R.C. 2921.04(B). Proof of threats made to the victim with
intent to punish the victim for reporting the crime is sufficient. The deterrence of
retaliatory threats is just as important in the promotion of crime reporting as protecting
the victim who has not yet reported a crime. {¶17} In this case, Rocha concedes that he made threats of serious physical harm
to the victim. According to Samples, Romoga, and Tatum, Rocha threatened: “I’ll get
you for calling the cops, you fucking bitch, cop-snitching bitch” and “You cop-snitching
bitch, I’ll be back for you.” After being told to quiet down, Rocha screamed: “You’re all
going to find him with broken arms, legs, and mouth.” Rocha’s threats were evidently
made to punish Samples for reporting the crime because he called the police. Therefore,
viewing the evidence in a light most favorable to the state, we find there is sufficient
evidence to sustain Rocha’s intimidation of a crime victim conviction.
{¶18} Judgment affirmed.
It is ordered that appellee recover from appellant 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 common
pleas 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.
EILEEN T. GALLAGHER, JUDGE
MARY J. BOYLE, A.J., and SEAN C. GALLAGHER, J., CONCUR