State v. Shutway

2020 Ohio 5035

• Court: Ohio Court of Appeals
• Decided: October 23, 2020
• Docket: 2018-CA-39
• Status: Published

Opinion

[Cite as State v. Shutway, 2020-Ohio-5035.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2018-CA-39 : v. : Trial Court Case No. 2018-CR-77 : JOHN ANTHONY SHUTWAY : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 23rd day of October, 2020.

JANE A. NAPIER, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Champaign County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

JOHN ANTHONY SHUTWAY, 3832 Township Road 165, West Liberty, Ohio 43357 Defendant-Appellant, Pro Se

.............

WELBAUM, J. -2-

{¶ 1} Defendant-appellant, John Anthony Shutway, appeals pro se from his

conviction in the Champaign County Court of Common Pleas after a jury found him guilty

of one count of failure to comply with an order or signal of a police officer and one count

of obstructing official business. For the reasons outlined below, Shutway’s conviction

will be affirmed.

Facts and Course of Proceedings

{¶ 2} On March 20, 2018, Officer Chad Duncan of the Tremont City Police

Department was on duty monitoring traffic with his radar gun on Valley Pike in Clark

County, Ohio, when he observed a minivan traveling 36 miles per hour in a 25 miles per

hour zone. Upon observing this speeding violation, Officer Duncan activated the siren

and overhead lights on his marked patrol cruiser and pulled behind the minivan to initiate

a traffic stop. The driver of the minivan, Shutway, refused to pull his vehicle over and

continued to drive northbound on Valley Pike toward Champaign County. As a result,

Officer Duncan radioed dispatch and advised that he was pursuing a vehicle that would

not pull over and that the vehicle was headed toward Champaign County.

{¶ 3} The Champaign County Dispatch Center was notified of the pursuit and

called out the pursuit over the radio. In response, Champaign County Sheriff’s Deputies

Zac Prickett and Brandon Fenwick joined Officer Duncan in pursuit of Shutway near the

intersection of State Route 560 and U.S. Route 36 in Champaign County. Deputies

Prickett and Fenwick eventually took the lead in the pursuit, which went on for 12 to 13

miles at speeds of 55 to 60 miles per hour. During the pursuit, Shutway drove in a

dangerous and reckless manner, as he nearly collided with Deputy Prickett’s vehicle and -3-

caused Prickett to swerve off the road.

{¶ 4} The pursuit ended in a rural area on Church Road in Champaign County.

The officers managed to block the roadway and force Shutway to stop his vehicle.

Despite being stopped, Shutway would not comply with the verbal orders and commands

of the officers. The officers ordered Shutway multiple times to exit his vehicle and he

refused. Shutway also refused to roll down his window and unlock his door. In light of

Shutway’s resistance and failure to comply with the officers’ commands, Deputy Fenwick

broke the window out of the driver-side door of Shutway’s vehicle.

{¶ 5} After Deputy Fenwick broke the window, Deputy Prickett reached inside

Shutway’s vehicle in an attempt to unlock the door and unbuckle Shutway’s seatbelt.

Shutway, however, still refused to comply and began to struggle with Deputy Prickett.

Upon observing Deputy Prickett struggling with Shutway, Deputy Fenwick pulled out his

taser and tased Shutway. Only then was Deputy Prickett able to unbuckle Shutway’s

seatbelt and remove him from the vehicle. Once removed from the vehicle, the officers

placed Shutway into custody.

{¶ 6} Shutway was subsequently charged in the Champaign County Municipal

Court for two counts of felonious assault, one count of failure to comply with an order or

signal of a police officer, and one count of obstructing official business. Approximately

two weeks later, a Champaign County grand jury returned an indictment charging

Shutway with one count of failure to comply with an order or signal of a police officer and

one count of obstructing official business. Both of these counts included a specification

for the forfeiture of Shutway’s minivan. The indicted charges and specifications

pertained to the same conduct that Shutway was charged for in the Champaign Municipal -4-

Court.

{¶ 7} Shortly after Shutway’s indictment, the State moved to dismiss the charges

in municipal court. The municipal court granted the State’s motion and dismissed the

case against Shutway subject to the jurisdiction of the Champaign County Court of

Common Pleas. With regard to the indicted charges, Shutway pled not guilty and the

matter proceeded to a jury trial. Before Shutway’s case was submitted to the jury, the

State dismissed the two forfeiture specifications. After hearing the testimony and

evidence presented by the parties, the jury found Shutway guilty of failure to comply with

an order or signal of a police officer and obstructing official business. At sentencing, the

trial court ordered Shutway to complete five years of community control sanctions. The

trial court also suspended Shutway’s driver’s license for 13 years and ordered Shutway

to pay a fine of $2,750 and court costs.

{¶ 8} Shutway now appeals from his conviction, raising four assignments of error

for review. Before we address Shutway’s assigned errors, we note that in proceeding

with his appeal, Shutway filed a reply brief with three exhibits attached thereto. The

exhibits include a traffic ticket issued to Shutway on March 20, 2018; an audio recording

containing various radio communications between an unidentified police officer and a

dispatcher; and a copy of an e-mail correspondence between the Tremont City police

chief and the 9-1-1 coordinator of the Clark County Sheriff’s Office. The State filed a

motion to strike these exhibits because they were not part of the record on appeal.

{¶ 9} Upon review, the State’s motion to strike is granted. “[I]n reviewing the trial

court’s judgment, we are limited to the record before the trial court.” Williams v. Pioneer

Credit Recovery, Inc., 2d Dist. Montgomery No. 28524, 2020-Ohio-397, ¶ 16, citing Kahler -5-

v. Eytcheson, 2d Dist. Montgomery No. 23523, 2012-Ohio-208, ¶ 23. “ ‘An exhibit

merely appended to an appellate brief is not part of the record, and we may not consider

it in determining the appeal.’ ” Id., quoting State v. Grant, 10th Dist. Franklin Nos. 12AP-

650 and 12AP-651, 2013-Ohio-2981, ¶ 12. Accord State v. Wilson, 2d Dist. Clark No.

2018-CA-2, 2020-Ohio-2962, ¶ 29. Therefore, for purposes of determining the merits of

this appeal, we will not consider the new documents that Shutway attached to his reply

brief.

First Assignment of Error

{¶ 10} Under his first assignment of error, Shutway contends that the jury’s verdict

finding him guilty of failure to comply with an order or signal of a police officer and

obstructing official business was invalid because the verdict form signed by the jurors did

not include a finding that Champaign County was the correct venue. We disagree.

{¶ 11} As a preliminary matter, we note that during his trial, Shutway did not object

to the verdict forms on the basis that they failed to include a finding as to venue. As a

result, Shutway has waived all but plain error with regard to that issue. See State v.

Ropp, 2d Dist. Champaign No. 2018-CA-44, 2020-Ohio-824, ¶ 47; State v. Shedwick,

10th Dist. Franklin No. 11AP-709, 2012-Ohio-2270, ¶ 43. To prevail under the plain

error standard, Shutway “must demonstrate both that there was an obvious error in the

proceedings and that but for the error, the outcome of [his] trial clearly would have been

otherwise.” State v. Satterfield, 2017-Ohio-5616, 94 N.E.3d 171, ¶ 31 (2d Dist.), citing

State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 61-62.

{¶ 12} We find no obvious error with regard to the jury verdict forms at issue. -6-

“ ‘[W]hen a court submits a verdict form containing a statutory description of the offense,

it commits reversible error if the description omits essential elements of that offense.’ ”

(Emphasis added.) State v. Harwell, 2d Dist. Montgomery No. 25852, 2015-Ohio-2966,

¶ 59, quoting State v. Lampkin, 116 Ohio App.3d 771, 774, 689 N.E.2d 106 (6th

Dist.1996). While venue is a fact that must be proven at trial, it “is not a material element

of any offense charged.” (Citation omitted.) State v. Draggo, 65 Ohio St.2d 88, 90, 418

N.E.2d 1343 (1981). Accord State v. Richardson, 2016-Ohio-8081, 75 N.E.3d 831, ¶ 25

(2d Dist.); State v. Weber, 2d Dist. Montgomery No. 25508, 2013-Ohio-3172, ¶ 32 (venue

is not a material element of a charged offense). Rather, “[t]he elements of the offense

charged and the venue of the matter are separate and distinct.” (Citations omitted.)

Draggo at 90.

{¶ 13} Even if jury verdict forms were required to mention the jury’s finding as to

venue, we would still not find an obvious error in the verdict forms at issue. The

language used in the verdict forms sufficiently established that the jury found Shutway’s

offenses were committed in Champaign County, Ohio. Specifically, the first verdict form

contains the heading “Count One” followed by the proper statutory definition for the

offense of failure to comply with an order or signal of a police officer. The second verdict

form contains the heading “Count Two” followed by the proper statutory definition for the

offense of obstructing official business. While charging the jury, the trial court explained

each of these counts in relation to the corresponding verdict forms by stating the following:

Count One. The Defendant is charged with Failure to Comply with

an Order or Signal of a Police Officer. Before you can find the Defendant

guilty, you must find beyond a reasonable doubt that on or about the 20th -7-

day of March, 2018, in Champaign County, Ohio, the Defendant operated

a motor vehicle so as willfully to elude or fell a police officer after receiving

a visible or audible signal from a police officer to bring his motor vehicle to

a stop.

***

Count Two. The Defendant is charged with Obstructing Official

Business. Before you can find the Defendant guilty, you must find beyond

a reasonable doubt that on or about the 20th day of March, 2018, and in

Champaign County, Ohio, the Defendant, without privilege to do so and with

purpose to prevent, obstruct, or delay the performance by a public official

of any authorized act within his official capacity, did an act that hampered

or impeded the public official in the performance of his lawful duties.

You’ll open the Verdict Form Folder and within the verdict forms there

are two sheets of paper. One sheet of paper is for Count One. One sheet

of paper is for Count Two. Each document has the same case caption at

the top. Meaning, * * * one is labeled Count One and the other is labeled

Count Two.

(Emphasis added.) Trial Tr. Vol. II, p. 487, 490, and 493.

{¶ 14} When reading the foregoing jury instructions along with the language found

in the verdict forms, it is clear that by indicating Shutway was guilty on the verdict forms

the jury had found that Shutway committed the offenses at issue in Champaign County,

Ohio. See Shedwick, 10th Dist. Franklin No. 11AP-709, 2012-Ohio-2270, at ¶ 43-44 -8-

(finding no plain error with respect to venue in a jury verdict form where the language in

the verdict form specified that the jury found appellant guilty of each count as it was

charged in the indictment and where the jury instructions provided that in order to find the

appellant guilty of the charged offenses the jurors must find beyond a reasonable doubt

that the offenses were committed in Franklin County, Ohio). Therefore, Shutway’s claim

that the jury verdict forms did not provide the jury’s finding as to venue lacks merit.

{¶ 15} Shutway’s first assignment of error is overruled.

Second Assignment of Error

{¶ 16} Under his second assignment of error, Shutway contends that the trial court

erred by permitting the State to present the failure to comply and obstructing official

business charges to a grand jury before a preliminary hearing was completed for the

charges in the Champaign County Municipal Court. According to Shutway, holding a

grand jury proceeding before the conclusion of the preliminary hearing in municipal court

violated Crim.R. 5(B)(8) and rendered the common pleas court without jurisdiction over

the matter. We disagree.

{¶ 17} Shutway’s preliminary hearing for the municipal court charges was

scheduled to take place on March 22, 2018. The preliminary hearing was then continued

to March 29, 2018, at Shutway’s request. The day of the preliminary hearing, Shutway

appeared and moved to disqualify the municipal court judge presiding over the matter.

In response to this request, the judge explained what would happen if he disqualified

himself and stated the following:

COURT: Ok. So I would have to call the Supreme Court, and they -9-

would appoint somebody to come down here and do that.* * *

When they appoint one, then you would have a preliminary

hearing if you can still have a preliminary hearing on that

matter. In between now and then, you could go to the grand

jury, and then you wouldn’t even be in this court. Do you

understand all that?

SHUTWAY: Yes, Your Honor.

COURT: Is that what you want me to do?

SHUTWAY: Your Honor, Yes.

Hearing Tr. (Mar. 29, 2018), p. 6.

{¶ 18} Four days later, a Champaign County grand jury indicted Shutway for the

offenses at issue. The case pending against Shutway in municipal court was then

dismissed. The matter then proceeded to an arraignment hearing in the Champaign

County Court of Common Pleas. During that hearing, Shutway argued that the common

pleas court lacked jurisdiction over the matter due to the preliminary hearing not having

been completed in municipal court. The common pleas court judge disagreed and

stated as follows:

I believe [the municipal court case] was dismissed prior to a

preliminary hearing. And as you may know, in Ohio you can go with a

direct indictment with a Grand Jury indictment. Which I believe is what

happened in this case. * * *

Correct. [The preliminary hearing] was continued. * * *

I am just going to say that the recollection of what shows on the -10-

municipal court website is that you were before Judge Weithman on the

29th of March. And that was set for a preliminary hearing. And at that

time, you asked Judge Weithman to recuse himself, which he did. And,

therefore, the preliminary hearing was continued. But prior to that

preliminary hearing taking place this indictment was returned and,

therefore, the municipal court proceedings were moot.

Hearing Tr. (May 10, 2018), p. 5-6.

{¶ 19} The aforementioned statement by the common pleas court was correct.

Crim.R. 5(B)(1) specifically provides that: “The preliminary hearing shall not be held, * * *

if the defendant is indicted.” In addition, the Supreme Court of Ohio has explained that

“once an indictment has been returned by the grand jury a preliminary hearing before a

magistrate is no longer necessary.” State v. Minamyer, 12 Ohio St.2d 67, 232 N.E.2d

401 (1967), paragraph one of the syllabus. Accord State v. Garland, 2d Dist. Darke No.

933, 1976 WL 190412, *1 (Jan. 20, 1976) (“if indicted, a preliminary hearing is no longer

necessary”); State v. Kinney, 4th Dist. Ross No. 96CA2176, 1996 WL 571394, *2 (Oct. 3,

1996) (“there is no constitutional right to a preliminary hearing once an indictment has

been returned against a defendant since a probable cause determination has already

been made by the grand jury”); State v. Jackson, 8th Dist. Cuyahoga Nos. 62671, 62672,

1993 WL 462879, *6 (Nov. 10, 1993) (the return of a grand jury indictment extinguishes

any right to a preliminary hearing). “[N]o rights or defenses are lost for failure to hold a

preliminary hearing.” State v. Leach, 9th Dist. Summit No. 22369, 2005-Ohio-2569, ¶ 30,

citing White v. Maxwell, 174 Ohio St. 186, 188, 187 N.E.2d 878 (1963). (Other citations

omitted.) Therefore, Shutway incorrectly claims that a preliminary hearing on the -11-

municipal court charges was required before he could be indicted in the common pleas

{¶ 20} We also note that Shutway’s claim that the trial court violated Crim.R.

5(B)(8) lacks merit. Crim. R. 5(B)(8) provides that:

A municipal or county court retains jurisdiction on a felony case

following the preliminary hearing, or a waiver thereof, until such time as a

record of the appearance, docket entries, and other matters required for

transmittal are filed with the clerk of the court in which the defendant is to

appear.

(Emphasis added.) By its terms, Crim.R. 5(B)(8) concerns the retention of a municipal

court’s jurisdiction after a preliminary hearing has been held or after the waiver of a

preliminary hearing. Since Shutway was indicted prior to a preliminary hearing being

held or waived in municipal court, Crim.R. 5(B)(8) was inapplicable and does not support

Shutway’s assignment of error.

{¶ 21} Although it does not pertain to his assigned error, Shutway also argues that

the trial court imposed excessive bail in violation of his constitutional rights under the

Eighth and Fourteenth Amendments. The record indicates that the trial court initially

imposed a $25,000 bail bond following Shutway’s indictment. Five days later, the trial

court modified Shutway’s bond to a personal recognizance bond. Shutway claims that

the personal recognizance bond imposed by the trial court was excessive because he

had previously bonded himself out of jail after the municipal court imposed a $15,000

bond for the same offenses. As a result, Shutway claims that he was improperly

subjected to a second bond. -12-

{¶ 22} Shutway provides no case law supporting his excessive bail claim.

Furthermore, “[t]he proper remedy for excessive bail is habeas corpus, not [an] appeal

from the defendant’s conviction.” State v. Smith, 5th Dist. Muskingum No. CT2019-

0005, 2019-Ohio-4645, ¶ 27. See also Chari v. Vore, 91 Ohio St.3d 323, 325, 744

N.E.2d 763 (2001) (“Habeas corpus is the proper remedy to raise the claim of excessive

bail in pretrial-release cases.”); In re DeFronzo, 49 Ohio St.2d 271, 273, 361 N.E.2d 448

(1977) (“It is well established that habeas corpus is the proper remedy to raise the claim

of excessive bail.”); State v. Foster, 10th Dist. Franklin No. 08AP-523, 2008-Ohio-3525,

¶ 5 (“Customarily, challenges to excessive bond are reviewed under an abuse of

discretion standard by means of an original action in habeas corpus.”). This court has

held that “[a]fter conviction, any error concerning pretrial bail is moot, and this issue may

not be raised on direct appeal from a conviction.” State v. Knisley, 2d Dist. Montgomery

No. 22897, 2010-Ohio-116, ¶ 25, citing State v. Towns, 8th Dist. Cuyahoga No. 88059,

2007-Ohio-529, ¶ 20. Therefore, Shutway’s excessive bail claim is moot and was not

properly raised in this appeal.

{¶ 23} In addition to excessive bail, Shutway further argues that he was prejudiced

by his alleged inability to challenge the array of grand jurors due to his counsel’s absence

at the grand jury proceedings. Shutway claims that the State had a duty to notify his

counsel that the matter was being brought to the grand jury.

{¶ 24} Shutway once again provides no authority to support his claim. It has been

held that there is no obligation on the part of government counsel to notify the defendant’s

counsel that the defendant was subpoenaed before the grand jury. United States v.

Levinson, 405 F.2d 971, 980 (6th Cir.1968). Furthermore, “the Sixth Amendment right -13-

to counsel does not attach when an individual is summoned to appear before a grand

jury, even if he is the subject of the investigation.” United States v. Williams, 504 U.S.

36, 49, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992), citing United States v. Mandujano, 425

U.S. 564, 581, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976). Accord United States v. Taylor,

S.D.Ohio No. 2:12-CR-218, 2013 WL 3270381, *1 (June 26, 2013), quoting Mandujano

at 581 (“Since the Sixth Amendment right to counsel does not attach until an indictment,

* * * a Grand Jury witness “ ‘cannot insist, as a matter of Constitutional right, on being

represented by his counsel.’ ”); State ex rel. Ramos v. White, 9th Dist. Lorain No.

96CA006511, 1997 WL 72091, *2 (Feb. 7, 1997) (“there is no right to counsel at a grand

jury proceeding”). Moreover, pursuant to Crim.R. 6(B)(2), Shutway could have filed a

motion to dismiss the indictment based on objections to the array of grand jurors, but he

failed to do so. Therefore, Shutway’s claim that he was unable to challenge the array of

grand jurors lacks merit.

{¶ 25} Finally, Shutway also raised a claim of selective prosecution. Specifically,

Shutway claims that the State engaged in selective prosecution because it did not

prosecute him for the underlying speeding charge that arose in Clark County. We fail to

see how this amounts to selective prosecution. A selective-prosecution claim is an

independent assertion that the prosecutor has brought a charge for reasons forbidden by

the Constitution, such as race, religion, or another arbitrary classification. See State v.

Getsy, 84 Ohio St.3d 180, 203, 702 N.E.2d 866 (1998), citing United States v. Armstrong,

517 U.S. 456, 463, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996); Cleveland v. Trzebuckowski,

85 Ohio St.3d 524, 531, 709 N.E.2d 1148 (1999). The fact that the State chose not to

prosecute an offense that occurred in another jurisdiction does not amount to selective -14-

prosecution or any other error that Shutway may be claiming in this appeal.

{¶ 26} For all the foregoing reasons, Shutway’s second assignment of error is

overruled.

Third Assignment of Error

{¶ 27} Under his third assignment of error, Shutway contends that the State

committed prosecutorial misconduct by withholding certain discovery in violation of

Crim.R. 16(A). Specifically, Shutway claims that the State withheld a Use of Force

Report prepared by law enforcement and an audio recording from the Clark County 9-1-

1 Dispatch Center. According to Shutway, these items contained exculpatory evidence

and could have been used to impeach two of the State’s witnesses. Shutway’s claim

fails for multiple reasons.

{¶ 28} “The test for prosecutorial misconduct is whether the prosecutor’s conduct

was improper and, if so, whether that conduct prejudicially affected substantial rights of

the accused.” State v. St. John, 2d Dist. Montgomery No. 27988, 2019-Ohio-650, ¶ 109,

citing State v. Martin, 2d Dist. Montgomery No. 22744, 2009-Ohio-5303, ¶ 15.

Allegations of prosecutorial misconduct related to violations of Crim.R. 16 “result in

reversible error only when there is a showing that (1) the prosecution’s failure to disclose

was willful, (2) disclosure of the information prior to trial would have aided the accused’s

defense, and (3) the accused suffered prejudice.” State v. Jackson, 107 Ohio St.3d 53,

2005-Ohio-5981, 836 N.E.2d 1173, ¶ 131, citing State v. Parson, 6 Ohio St.3d 442, 445,

453 N.E.2d 689 (1983); State v. Joseph, 73 Ohio St.3d 450, 458, 653 N.E.2d 285 (1995).

{¶ 29} With regard to the Use of Force Report, the record indicates that on July 26, -15-

2018, Shutway issued a subpoena to the Champaign County Sheriff’s Office for purposes

of obtaining the Use of Force Report and other items that were not included in the State’s

discovery packet. Trial Tr. Vol. II, p. 367. Shutway claimed that an officer from the

sheriff’s office advised him that there was no Use of Force Report and that the officer

directed him to Tremont City. Id. at 374. Shutway indicated that he was thereafter able

to obtain a Use of Force Report from the Tremont City Police Department. Id.

{¶ 30} At trial, the prosecutor for the State explained that when he learned of

Shutway’s subpoena, he went to the sheriff’s office to express his concern that Shutway

had improperly used a subpoena to request public records. Id. at 349. The prosecutor

claimed that in the interest of fairness, he instructed the sheriff’s office to provide him with

the requested documentation so that he could deliver it to Shutway. Id. The record

indicates that on July 30, 2018, the day before trial, the prosecutor obtained two Use of

Force Reports prepared by Deputy Prickett and Deputy Fenwick as well as a Taser Use

Report. See State’s Exhibit No. 7. The record indicates that the prosecutor then e-

mailed this documentation to Shutway the same day it was received. Id. The

prosecutor advised the trial court that he had no knowledge of the Use of Force Report

that Shutway allegedly obtained from Tremont City. Trial Trans Vol. II, p. 376.

{¶ 31} Shutway admitted on the record, as well as in his brief, that he received the

Champaign County Use of Force Reports from the prosecutor the day before his trial.

Id. at 378-379. He also clarified on the record that he was able to obtain the Tremont

City Use of Force Report prior to trial. Although it is unclear from Shutway’s brief which

Use of Force Report he is referring to, even if we were to assume that the prosecutor

willfully withheld all the Use of Force Reports discussed herein, Shutway cannot establish -16-

that the reports would have aided his defense or that he was prejudiced by the delay in

receiving the reports. This is because the trial court held, and we agree, that the

information contained in the reports was irrelevant since Shutway’s actions constituting

the offenses of failure to comply and obstructing official business were already completed

by the time the officers had to use force against him. Id. at 371-373, 378-379.

Furthermore, because Shutway received the Use of Force Reports prior to trial, he could

have moved for a trial continuance based on the late disclosure. Had he done so, any

prejudice that Shutway believes he sustained from the delay in receiving the documents

could have been cured. See State v. Williams, 9th Dist. Summit No. 23176, 2007-Ohio-

622, ¶ 19.

{¶ 32} We next turn to the audio recording from the Clark County 9-1-1 Dispatch

Center. Shutway claims that the State provided him with dispatch audio recordings from

Champaign County’s 9-1-1 dispatch center, but never provided him with dispatch audio

recordings from Clark County’s 9-1-1 dispatch center. The State maintains that it never

received the Clark County audio recordings, and thus was unable to provide them to

Shutway. Shutway asserts that the Clark County audio recordings were exculpatory in

that they established that Officer Duncan: (1) was in Champaign County when he first

made radio contact with the dispatcher; (2) never requested assistance from the

Champaign County Sheriff’s Office; and (3) never stated to the dispatcher that a

Champaign County Sheriff’s vehicle was forced off the road or that a Champaign County

officer was outside his vehicle. Even if we assume that the foregoing information was

provided in the Clark County audio recordings (as they are not part of the record on

appeal), we fail to see how any of this information was exculpatory or how it might have -17-

changed the outcome of Shutway’s trial.

{¶ 33} More importantly, the record establishes that Shutway obtained the Clark

County audio recordings prior to his trial. Specifically, the record establishes that

Shutway subpoenaed the Clark County audio recordings from the Tremont City Police

Department, and that the department’s police chief, Greg Nelson, delivered the requested

audio recordings to Shutway the day before his trial. See Notice of Affidavit in Support

of State’s Opposition to Defendant’s Request for New Trial: Affidavit of Greg Nelson (Oct.

12, 2018). In his affidavit, Chief Nelson specifically averred that he obtained the audio

recordings from the Clark County Sheriff’s Office and delivered the recordings to Shutway

on July 30, 2018. Id. Because Shutway had the opportunity to review the Clark County

audio recordings prior to trial, he could have used the information on the recordings to

formulate his defense strategy, or, at the very least, he could have requested a trial

continuance. Therefore, we do not find that Shutway was prejudiced by the State’s

failure to provide him with the Clark County audio recordings.

{¶ 34} Shutway’s third assignment of error is overruled.

Fourth Assignment of Error

{¶ 35} Under his fourth assignment of error, Shutway contends that his indictment

was void and did not confer jurisdiction on the trial court because it was not signed by the

grand-jury foreperson. We disagree.

{¶ 36} Crim.R. 6(C) outlines the duties of a grand-jury foreperson, and it requires

the foreperson to “sign all indictments.” R.C. 2939.20 also requires the grand-jury

foreperson to sign the indictment, as well as indorse the indictment with the words “A true -18-

bill.” This court has stated that “ ‘[a] multiple-count indictment containing the words “a

true bill” and signed by the foreperson of the grand jury is sufficient when the entire

indictment is provided to the defendant, notwithstanding that each count of the indictment

is not separately signed by the foreperson.’ ” State v. Bray, 2d Dist. Clark No. 2010-CA-

14, 2011-Ohio-4660, ¶ 54, quoting State v. Ballow, 9th Dist. Medina No. 2527-M, 1996

WL 365020, *3 (July 3, 1996). This court has also found that “[t]here is no requirement

in the Criminal Rules or the Revised Code that the grand jury foreperson sign every page

and/or count in a multiple count indictment.” Id.

{¶ 37} In this case, the record establishes that the indictment in question was

comprised of three pages. The first two pages included a description of the two indicted

charges and specifications followed by the prosecutor’s signature. The third page of the

indictment was the “Summary of Indictment” that included the grand-jury foreperson’s

signature under the heading “A True Bill.”

{¶ 38} The “Summary of Indictment” included the following statement beneath the

grand-jury foreperson’s signature: “This Bill of Indictment found upon testimony Sworn

and sent before the Grand Jury at the Request of the Prosecuting Attorney.” This

statement indicated that the document to which the foreperson’s signature was affixed

was part of the indictment. Because the “Summary of Indictment” was part of Shutway’s

indictment, and because it contained the grand-jury foreperson’s signature with the words

“A True Bill” indorsed on it, the indictment was compliant with Crim.R. 6(C) and R.C.

2939.20. Therefore, contrary to Shutway’s claim otherwise, the indictment was not

defective and does not warrant the reversal of his conviction.

{¶ 39} Shutway’s fourth assignment of error is overruled. -19-

Conclusion

{¶ 40} Having overruled all four assignments of error raised by Shutway, the

judgment of the trial court is affirmed.

FROELICH, J. and HALL, J., concur.

Copies sent to:

Jane A. Napier John Anthony Shutway Hon. Nick A. Selvaggio