[Cite as State v. Taylor, 2016-Ohio-5912.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Sheila G. Farmer, P. J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. John W. Wise, J. vs. : : Case No. 16 CA 17 DAN TAYLOR, JR. : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 15 CR 777
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 21, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BAMBI COUCH PAGE DAVID M. WATSON PROSECUTING ATTORNEY 3 North Main Street DANIEL M. ROGERS Suite 702 ASSISTANT PROSECUTOR Mansfield, Ohio 44902 38 South Park Street Mansfield, Ohio 44902 Richland County, Case No. 16 CA 17 2
Wise, J.
{¶1} Appellant Dan Taylor, Jr. appeals his conviction on two counts of domestic
violence and one count of felonious assault following a jury trial.
{¶2} Appellee is State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On August 29, 2015 around 11:30 p.m., Appellant Dan Taylor, Jr. and his
wife M.T. had an argument in the bedroom of the home they shared with M.T.’s father,
J.J. in Shelby, Ohio. [T. at 136-140]. According to M.T., the argument arose out of her
refusal to drive Appellant to Mansfield to purchase Crack Cocaine. [T. at 183-184]. J.J.,
a seventy-two (72) year old man with diabetes, went into the bedroom, observed
Appellant threatening M.T. with a knife, and attempted to calm Appellant down. [T. at
140-141]. Appellant shoved J.J., causing him to fall into a dresser and cut his arm. Id.
J.J. left the bedroom and called 911. [T. at 142-143, 182, 185].
{¶4} When Appellant saw J.J. calling 911, he punched him in the face and
knocked out one of his teeth. Appellant then told J.J. "that's for calling the cops." [T. at
142-143, 334-335]. After punching J.J. in the face, Appellant left before the police
arrived. [T. at 145].
{¶5} After leaving, Appellant encountered J.J.’s neighbor, Robert Shetler. [T. at
301-303]. Appellant told Mr. Shetler "you're a cracker. Come over and get some of this.
I got my peeps coming. It's your fault." [T. at 303].
{¶6} Sergeant Bushey, Deputy Berry and Deputy Knee with Richland County
Sheriff’s Office (RCSO) and Patrolman Hartz with Shelby PD responded to the 911 call.
[T. at 178-181, 324-326, 332]. M.T., who had a laceration in her head, informed officers Richland County, Case No. 16 CA 17 3
that Appellant had assaulted her and her father. [T. at 182-183, 185]. M.T. also advised
officers that Appellant had left the residence, and that he might be hiding in a nearby
field. [T. at 182]. J.J. informed officers that Appellant shoved him and subsequently
punched him in the face. [T. at 185].
{¶7} M.T. completed and signed a written statement and Domestic Violence
packet indicating that Appellant struck her with a closed fist, slapped her, pushed her,
and threatened her with a knife. [T. at 327-330]. J.J. also completed a written statement
describing Appellant shoving him and punching him in the face. [T. at 334-335].
{¶8} Dep. Berry recovered a knife from the bedroom Appellant and M.T. shared
and observed blood stains on the bed and on the handle of the front door of the house.
[T. at 327, 330-332]. Deputies took photographs, which included J.J.’s and M.T.’s
injuries, the knife, and the blood stains on the bed and door handle. [T. at 330-334].
{¶9} Shelby EMS also responded and treated J.J. and M.T. for their injuries. J.J
and M.T. both declined to be taken to the hospital at that time. [T. at 336]. Officers were
unable to locate Appellant and left the scene around 12:45 am on August 30, 2015. [T
at. 306].
{¶10} At approximately 1:30 a.m. on August 30, 2015, Appellant returned to the
house. [T. at 147-150, 186]. J.J. asked Appellant to leave and when he refused, J.J.
grabbed his .12 gauge pump shotgun and fired a “warning shot” into the ground. Id.
Appellant ignored J.J.’s warnings, walked inside the house, and went into the bedroom
with M.T.. Id. Appellant punched M.T. in the face, on the opposite side from her earlier
laceration, and ordered her to lay in bed with him. [T. at 345-346]. Richland County, Case No. 16 CA 17 4
{¶11} Mr. Shetler, his roommate Lynn Moon, and his friend Don McCoy heard
the gunshot and called 911. [T. at 305-307, 315-318].They also went over to the house,
whereby Mr. Moon took possession of J.J.’s shotgun, unloaded it and placed it on Mr.
Shetler's back porch. [T. at 317-319]. Officers with RCSO, Shelby Police Department,
Plymouth Police Department and the Ohio State Highway Patrol, along with Shelby
EMS, responded to the scene. [Tr. 186-187, 287-288, 340]. Sgt. Bushey seized J.J.’s
shotgun and submitted it to RCSO. [Tr.188]. Officers then set up a perimeter around the
property to prevent Appellant from leaving the residence. [T. at 189-191, 340]. Dep.
Berry looked through the bedroom window and observed Appellant and M.T. lying in
bed together. [T. at 191, 341]. Dep. Berry identified himself and ordered Appellant to
show his hands. [T. at 342]. Once Dep. Berry had clear view of Appellant's hands, he
ordered other officers to enter the residence. Appellant was thereafter arrested without
incident. [T. at 191-192, 289-290, 342].
{¶12} As Dep. Berry escorted Appellant to his patrol car, Appellant stated "I'll
beat this one like I beat the last seven." [T. at 343]. A subsequent search of Appellant's
criminal history revealed multiple prior arrests and convictions for Domestic Violence.
[T. at 344-345].
{¶13} Following Appellant's arrest, Shelby EMS transported J.J. and M.T. to
Shelby Hospital for treatment. [T.at 151-153, 231- 232, 244]. While at Shelby Hospital,
M.T. advised Nurse Natasha Rinehart that Appellant hit her in the head with a beer
bottle. [T. at 231-232]. Doctors treated M.T. for the laceration on the right side of her
head, swelling on the left side of her head, bruising on her neck, bruising and swelling
on her left index finger, and a possible concussion. [T. at 232]. Richland County, Case No. 16 CA 17 5
{¶14} J.J. advised Nurse Jill Wheeler that Appellant shoved him and punched
him in the face. [T. at 247]. Doctors treated J.J. for a cut to his lip, the missing tooth and
the laceration to his arm. [T. at 244-247].
{¶15} On September 1, 2015, Appellant called M.T. from the jail and asked her
to lie about the cause of her injuries. [T. at 216-220].
{¶16} On September 3, 2015, Sgt. Henderson with RCSO met with M.T. and
photographed her injuries prior to Appellant's preliminary hearing in Mansfield Municipal
Court. [T. at 290-291].
{¶17} On October 15, 2015, the Richland County Grand Jury indicted Appellant
Dan Taylor, Jr. on three (3) counts stemming from the events of August 30, 2015.
Counts 1 and 2 of the indictment charged Appellant with Domestic Violence against
his wife and father-in-law, a third degree felony pursuant to R.C. 2919.25(A) based
on Appellant's prior convictions for Domestic Violence. Count 3 of the indictment
charged Appellant with Felonious Assault against his father-in-law, a second-degree
felony pursuant to R.C. 2903.11(A)(1).
{¶18} On October 16, 2015, Appellant filed a pro se "Motion for Speedy Trial"
with the Trial Court. The trial court never ruled upon Appellant's "Motion for Speedy
Trial."
{¶19} During his arraignment on October 17, 2015, Appellant pled not guilty
to the indictment. The trial court scheduled a Prosecutor Pretrial for November 10,
2015 and ordered Appellant to not have contact with M.T. or J.J.
{¶20} On October 28, 2015, Appellant filed a "Demand for Discovery." Richland County, Case No. 16 CA 17 6
{¶21} On November 2, 2015, the trial court scheduled Appellant's jury trial for
November 19, 2015.
{¶22} On November 3, 2015, Appellant filed a "Motion for Continuance of
{¶23} On September 19 and November 14, 2015, M.T. violated the no-contact
orders imposed by Mansfield Municipal Court and the trial court by visiting Appellant in
Richland County Jail. [T. at 215]. M.T. signed in under a different name when she
visited Appellant. [T. at 215, 217].
{¶24} On November 18, 2015, the trial court granted Appellant's "Motion for
Continuance of Trial" and continued Appellant's trial until January 7, 2016.
{¶25} On November 19, 2015, the trial court scheduled a Final Pretrial for
December 28, 2015.
{¶26} On January 5, 2016, Appellant, while represented by trial counsel, filed
a pro se "Motion to Discharge" asking the trial court to dismiss the indictment based
on the State violating his speedy trial rights.
{¶27} On January 7, 2016, the trial court continued Appellant's jury trial to
February 11, 2016, due to Richland C.P. No. 2015-CR-324 proceeding to trial.
{¶28} On January 28, 2016, the State filed a "Response to Defendant's
Motion to Dismiss."
{¶29} On February 9, 2016, the trial court overruled Appellant's "Motion to
Discharge" finding that only 160 out of the permitted 270 days had elapsed, as
Appellant's "Demand for Discovery" on October 28, 2015, Appellant's "Motion for Richland County, Case No. 16 CA 17 7
Continuance of Trial" on November 3, and the trial court's continuance from
February 11, 2016, all tolled Appellant's speedy trial time. Id.
{¶30} On February 11, 2016, Appellant's case proceeded to jury trial. During
trial, the State presented testimony from nine (9) witnesses and introduced twenty
(20) exhibits. [Tr. 261- 263]. The trial court allowed the State to treat M.T. as a
court's witness after she provided testimony contradicting her prior statements to
police and medical personnel and admitted that she was protecting Appellant. [T. at
203-210].
{¶31} On February 12, 2016, the jury found Appellant guilty on all three (3)
counts of the indictment. Following the verdict, the trial court scheduled sentencing
for February 17, 2015.
{¶32} On February 17, 2015, the trial court sentenced Appellant to prison
terms of three (3) years on Counts 1 and 2 and eight (8) years on Count 3. The trial
court ordered that Appellant's sentences on Counts 1 and 3 run consecutively to
each other and concurrently with Count 2, for a total prison term of eleven (11)
years. The trial court also imposed three (3) years of mandatory post-release
control.
{¶33} On February 19, 2016, the trial court issued an order granting Appellant
169 days of jail time credit.
{¶34} Appellant now appeals, raising the following errors for review:
ASSIGNMENTS OF ERROR
{¶35} “I. THE TRIAL COURT ERRED BY OVERRULING DEFENDANT'S
MOTION TO DISCHARGE BECAUSE HE WAS NOT BROUGHT TO TRIAL WITHIN Richland County, Case No. 16 CA 17 8
THE TIME REQUIRED BY SECTIONS 2945.71 AND 2945.72 OF THE REVISED
CODE.
{¶36} “II. THE TRIAL COURT ERRED BY FAILING TO MERGE THE
CONVICTIONS FOR FELONIOUS ASSAULT AND DOMESTIC VIOLENCE IN
VIOLATION OF OHIO MERGER LAW AND MR. TAYLOR'S RIGHTS TO DUE
PROCESS AND AGAINST BEING SUBJECTED TO DOUBLE JEOPARDY.”
I.
{¶37} In his First Assignment of Error, Appellant argues that the trial court erred
in overruling his motion for a speedy trial. We disagree.
{¶38} The right to a speedy public trial is established in the Ohio Constitution,
Article I, Section 10. “In any trial, in any court, the party accused shall be allowed to
appear and defend in person and with counsel; to demand the nature and cause of the
accusation against him, and to have a copy thereof; to meet the witnesses face to face,
and to have compulsory process to procure the attendance of witnesses in his behalf,
and a speedy public trial by an impartial jury of the county in which the offense is
alleged to have been committed * * *.” (Emphasis added.) See, State v. MacDonald, 48
Ohio St.2d 66, 68, 357 N.E.2d 40, 42(1976).
{¶39} R.C. §2945.71 codifies a defendant's right to a speedy trial and provides
the time within which a hearing or trial must be held for specific offenses.
{¶40} A person charged with a felony shall be brought to trial within 270 days
after the person's arrest or the service of summons. R.C. §2945.71(C)(2). 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 Richland County, Case No. 16 CA 17 9
the same act or transaction, are pending shall be brought to trial on all of the charges
within the time period required for the highest degree of offense charged. R.C.
§2945.71(D). Each day an accused is held in jail shall be counted as 3 days. R.C.
§2945.71(E).Therefore, a defendant who is held in jail must be brought to trial within
ninety (90) days. However, certain events, as set forth in R.C. §2945.72, can extend the
ninety-day deadline.
{¶41} R.C. §2945.72 provides for a tolling of the time limitations under certain
circumstances,
The time within which an accused must be brought to trial, or, in the
case of felony, to preliminary hearing and trial, may be extended only by
the following:
(A) Any period during which the accused is unavailable for hearing
or trial, by reason of other criminal proceedings against him, within or
outside the state, by reason of his confinement in another state, or by
reason of the pendency of extradition proceedings, provided that the
prosecution exercises reasonable diligence to secure his availability;
(B) Any period during which the accused is mentally incompetent to
stand trial or during which his mental competence to stand trial is being
determined, or any period during which the accused is physically
incapable of standing trial;
(C) Any period of delay necessitated by the accused's lack of
counsel, provided that such delay is not occasioned by any lack of
diligence in providing counsel to an indigent accused upon his request as Richland County, Case No. 16 CA 17 10
required by law;
(D) Any period of delay occasioned by the neglect or improper act
of the accused;
(E) Any period of delay necessitated by reason of a plea in bar or
abatement, motion, proceeding, or action made or instituted by the
accused;
(F) Any period of delay necessitated by a removal or change of
venue pursuant to law;
(G) Any period during which trial is stayed pursuant to an express
statutory requirement, or pursuant to an order of another court competent
to issue such order;
(H) 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;
(I) Any period during which an appeal filed pursuant to section
2945.67 of the Revised Code is pending.
{¶42} “Upon motion made at or prior to the commencement of trial, a person
charged with an offense shall be discharged if he is not brought to trial within the time
required by sections 2945.71 and 2945.72 of the Revised Code.” R.C. §2945.73(B).
“[S]uch discharge is a bar to any further criminal proceedings against him based on the
same conduct.” R.C. §2945.73(D).
{¶43} A speedy-trial claim involves a mixed question of law and fact. State v.
Larkin, 5th Dist. Richland No. 2004–CA–103, 2005–Ohio–3122. As an appellate court, Richland County, Case No. 16 CA 17 11
we must accept as true any facts found by the trial court and supported by competent,
credible evidence. With regard to the legal issues, however, we apply a de novo
standard of review and thus freely review the trial court's application of the law to the
facts. Id. When reviewing the legal issues presented in a speedy-trial claim, we must
strictly construe the relevant statutes against the state. Brecksville v. Cook, 75 Ohio
St.3d 53, 57, 661 N.E.2d 706, 709(1996).
{¶44} In the case at bar, Appellant was in jail between August 30, 2015 and
February 11, 2016, for a total of 165 days. However, we find that the time tolled for the
following events:
Appellant’s Demand Discovery October 28, 2015 – November 4, 2015
Appellant’s Motion for Continuance November 3, 2015 – January 7, 2016
Appellant’s Motion for Discharge January 5, 2016 – February 9, 2016
Trial court’s sua sponte continuance January 7, 2016 – February 11, 2016
{¶45} Therefore, the time between October 28, 2015 and February 11, 2016,
totaling 106 days, tolled. We therefore find only 59 of the allowable 90 days chargeable
against the State.
{¶46} Accordingly, Appellant was tried within the 270–day requirement set forth
in R.C. §2945.71(C)(2).
{¶47} Based on the foregoing, we find Appellant's First Assignment of Error not
well-taken and hereby overrule same.
II.
{¶48} In his Second Assignment of Error, Appellant argues that the trial court
erred in failing to merge his convictions on Count Two Domestic Violence and Count Richland County, Case No. 16 CA 17 12
Three Felonious Assault, claiming the counts are allied offenses of similar import. We
disagree.
{¶49} R.C. §2941.25 reads:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant
may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses
of dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus
as to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶50} In State v. Johnson, 128 Ohio St.3d 153, 942 N.E.2d 1061, 2010–Ohio–
6314, the Ohio Supreme Court held: “When determining whether two offenses are allied
offenses of similar import subject to merger under R.C. 2941.25, the conduct of the
accused must be considered.” Id., at the syllabus. To determine whether offenses are
allied offenses of similar import under R.C. 2941.25(A), the question is whether it is
possible to commit one offense and commit the other with the same conduct, not
whether it is possible to commit one without committing the other. Id. at ¶ 48. If the
multiple offenses can be committed by the same conduct, then the court must
determine whether the offenses were committed by the same conduct. Id. at ¶ 49. If the
answer to both questions is yes, then the offenses are allied and must be merged. Id. at
¶ 50. However, if the court determines that the commission of one offense will never Richland County, Case No. 16 CA 17 13
result in the commission of the other, or if the offenses are committed separately, or if
the defendant has a separate animus for each offense, then the offenses will not merge,
according to R.C. 2941.25(B). Id. at ¶ 51.
{¶51} The Ohio Supreme Court in State v. Ruff, 143 Ohio St.3d 114, 34 N.E.3d
892, 2015–Ohio–995, addressed the issue of allied offenses, determining the analysis
set forth in Johnson to be incomplete:
{¶52} When the defendant's conduct constitutes a single offense, the defendant
may be convicted and punished only for that offense. When the conduct supports more
than one offense, however, a court must conduct an analysis of allied offenses of similar
import to determine whether the offenses merge or whether the defendant may be
convicted of separate offenses. R.C. §2941.25(B).
{¶53} A trial court and the reviewing court on appeal when considering whether
there are allied offenses that merge into a single conviction under R.C. §2941.25(A)
must first take into account the conduct of the defendant. In other words, how were the
offenses committed? If any of the following is true, the offenses cannot merge and the
defendant may be convicted and sentenced for multiple offenses: (1) the offenses are
dissimilar in import or significance - in other words, each offense caused separate,
identifiable harm, (2) the offenses were committed separately, and (3) the offenses were
committed with separate animus or motivation.
{¶54} At its heart, the allied-offense analysis is dependent upon the facts of a
case because R.C. §2941.25 focuses on the defendant's conduct. The evidence at trial
or during a plea or sentencing hearing will reveal whether the offenses have similar
import. When a defendant's conduct victimizes more than one person, the harm for Richland County, Case No. 16 CA 17 14
each person is separate and distinct, and therefore, the defendant can be convicted of
multiple counts. Also, a defendant's conduct that constitutes two or more offenses
against a single victim can support multiple convictions if the harm that results from
each offense is separate and identifiable from the harm of the other offense. We
therefore hold that two or more offenses of dissimilar import exist within the meaning of
R.C. §2941.25(B) when the defendant's conduct constitutes offenses involving separate
victims or if the harm that results from each offense is separate and identifiable. Id. at ¶
24–26.
{¶55} In the case sub judice, the testimony presented at trial demonstrates that
J.J. suffered separate harm as a result of the felonious assault and domestic violence
offenses. Appellant shoved J.J. to the ground, injuring his arm, when he attempted to
intervene in the argument between Appellant and M.T., which was the basis for the
domestic violence charge. The felonious assault count was based on Appellant’s
actions of punching J.J. in the face and knocking out one of his teeth after J.J. called the
police.
{¶56} We find that the two offenses charged two separate acts, which occurred
at two separate times, resulting in two separate injuries. The two assaults were also
brought on by two different triggering events: the first from intervening in the argument
between appellant and M.T. and the second for calling the police. Richland County, Case No. 16 CA 17 15
{¶57} We find, the record demonstrates J.J. suffered separate harm as a result
of the commission of the domestic violence charge and the felonious assault charge;
therefore, the trial court did not err in not merging Appellant's convictions.
{¶58} For the foregoing reasons, the judgment of the Court of Common Pleas of
Richland County, Ohio, is affirmed.
By: Wise, J.
Farmer, P.J., and
Hoffman, J., concur.
JWW/d 0830