State v. Wolfe

2025 Ohio 866

• Court: Ohio Court of Appeals
• Decided: March 14, 2025
• Docket: 29759
• Status: Published

Opinion

[Cite as State v. Wolfe, 2025-Ohio-866.]

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

STATE OF OHIO : : Appellee : C.A. No. 29759 : v. : Trial Court Case No. 2021 CR 04039 : JASON WOLFE : (Criminal Appeal from Common Pleas : Court) Appellant : :

...........

OPINION

Rendered on March 14, 2025

JASON WOLFE, Appellant, Pro Se

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee

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

HUFFMAN, J.

{¶ 1} Jason Wolfe appeals pro se from his convictions, following a jury trial, for

kidnapping (with a repeat violent offender specification that was tried to the court), grand

theft, and petty theft. For the reasons that follow, the trial court’s judgment will be

reversed as to sentencing and remanded for the trial court to give all the advisements -2-

required by the Reagan Tokes Act, to properly impose the Tier 1 sex offender/child victim

offender designation, and to properly consider restitution. In all other respects, the

judgment of the trial court will be affirmed.

Procedural History

{¶ 2} The events that gave rise to the charges against Wolfe occurred on

November 15, 2021, when Wolfe stole the vehicle of S.C., with her 11-year-old son, D.C.,

inside. At the time, the vehicle was parked at a DashMart on Watervliet Avenue, and

S.C., who worked for DoorDash, had gone inside to pick up an order to deliver. While

S.C. was inside, Wolfe drove away in her vehicle. Wolfe eventually ordered D.C. out of

the vehicle near Carmel’s Restaurant on Shroyer Road, and D.C. was later reunited with

his mother.

{¶ 3} The lengthy procedural history of this case began when Wolfe was indicted

on the three counts -- kidnapping, grand theft, and petty theft -- on February 15, 2022.

The court entered a plea of not guilty on Wolfe’s behalf.

{¶ 4} After Wolfe had been represented by multiple defense attorneys, he elected

to proceed pro se with standby counsel. He was tried in January and February 2023.

On February 6, 2023, the court filed an entry memorializing the jury’s findings of guilt on

all three counts. Wolfe filed multiple post-trial motions, which the court overruled on

February 13, 2023. The repeat violent offender specification to the kidnapping offense

was tried to the bench on February 14, 2023, and the court found Wolfe guilty on the

specification the next day.

{¶ 5} On March 1, 2023, Wolfe filed a notice of appeal of his “conviction by jury -3-

trial” and the trial court’s finding on the repeat violent offender specification. However, the

sentencing hearing did not occur until March 2, and the court filed its judgment entry of

conviction on March 6, 2023. In its judgment entry, the trial court sentenced Wolfe to an

indefinite mandatory minimum term of eight years to a maximum term of 12 years for

kidnapping, to 18 months for grand theft, to be served concurrently with the kidnapping

sentence, and to 180 days of local incarceration for petty theft, to be served concurrently

with the first two counts; the aggregate term was eight to 12 years. The court designated

Wolfe a repeat violent offender, and it ordered him to pay restitution to S.C. in the amount

of $604.69. Wolfe filed a notice of appeal from the March 6 judgment on March 30, 2023.

{¶ 6} On May 4, 2023, following a hearing, the court also designated Wolfe a Tier

1 sex offender/child victim offender. The following day, the court filed an amended

termination entry, which added language that Wolfe was a Tier I sex offender/child victim

offender.

{¶ 7} Wolfe raises 20 assignments of error on appeal. However, as a preliminary

matter, we note that Wolfe’s March 1, 2023 notice of appeal was filed prematurely, i.e.

before he was sentenced and a final judgment entry was filed. App.R. 4(C) governs

premature notices of appeal and states: “A notice of appeal filed after the announcement

of a decision . . . but before entry of the judgment or order that begins the running of the

appeal time period is treated as filed immediately after the entry.” “Clearly the Rules of

Appellate Procedure contemplate that there may be an announcement of a decision or

order which does not commence the running of the 30-day period for filing a notice of

appeal and which is not final until the entry of the judgment based on that decision. If -4-

the notice of appeal is filed prematurely, App.R. 4(B) makes it timely when the judgment

entry is filed.” State v. Tripodo, 50 Ohio St.2d 124 (1997). We will treat Wolfe’s

premature March 1, 2023 notice of appeal as filed on the date of the March 6, 2023

judgment entry of conviction, which was a final appealable order.

{¶ 8} We also note that Wolfe’s brief exceeds the page limit set forth by the

appellate rules. (Also, the first 16 pages of the brief are typewritten, and the remaining

26 pages are hand-written.) App.R. 19 governs the form of briefs and states:

Without prior leave of court, no initial brief of appellant or cross-appellant

and no answer brief of appellee or cross-appellee shall contain more than

9,000 words, and no reply brief shall contain more than 4,500 words,

exclusive of the cover page, table of contents, table of cases, statutes and

other authorities cited, statement regarding oral argument, certificates of

counsel, signature blocks, certificate of service, and appendices, if any. An

initial brief . . . not exceeding 30 pages in length at 12-point font shall be

presumed compliant with the 9,000 word limit.

{¶ 9} Wolfe’s brief is 42 pages. We are not required to consider the portion that

exceeds the page limit, which consists of approximately five assignments of error.

“ ‘[P]ro se litigants are presumed to have knowledge of the law and legal procedures’ ”

and are “ ‘held to the same standard as litigants who are represented by counsel.’ ” State

v. Colquitt, 2023-Ohio-3997, ¶ 14 (2d Dist.), quoting State ex rel. Fuller v. Mengel, 2003-

Ohio-6448, ¶ 10. Nevertheless, we will address Wolfe’s all of Wolfe’s assignments of

error. -5-

Repeat Violent Offender Designation

{¶ 10} Wolfe’s first assignment of error states:

THE TRIAL COURT ERRED IN DENYING WOLFE’S MOTION TO

HAVE THE JURY DETERMINE WHETHER HE QUALIFIED AS A REPEAT

VIOLENT OFFENDER.

{¶ 11} During the trial to the bench on the repeat violent offender specification,

Wolfe asserted that the jury should have made a finding with respect to the specification,

rather than the court. In support of the repeat violent offender specification, the State

introduced a 2002 judgment entry by which Wolfe was convicted of multiple counts of

aggravated robbery.

{¶ 12} R.C. 2924.149(B) states: “The court shall determine the issue of whether

an offender is a repeat violent offender.” Thus, by statute, the trial court determines the

repeat-violent-offender specification, not the jury. State v. Stodgel, 2024-Ohio-5182,

¶ 43 (4th Dist.), citing State v. Hunt, 2013-Ohio-5326, ¶ 76 (10th Dist.) (defendant may

waive a jury on a weapon under disability charge but, by statute, the repeat violent

offender specification is to be determined by the court rather than the jury). Further:

This is a constitutionally appropriate finding for a judge (rather than a jury)

to make, because the evidence supporting the repeat-violent-offender

specification is information about the defendant's criminal history and, as

the Ohio Supreme Court has explained, “[w]hen designating an offender as

a ‘repeat violent offender’ . . . , a trial court does not violate the Sixth

Amendment by considering relevant information about the offender's prior -6-

conviction that is part of the judicial record.” State v. Hunter, [2009-Ohio-

4147, paragraph two of the syllabus.] Moreover, “the Sixth Amendment

does not limit a sentencing court's consideration to the existence of a prior

conviction. On the contrary, the United States Supreme Court has held

that courts may consider the information contained in court documents that

are related to the prior conviction.” (Emphasis sic.) Id. at ¶ 36, citing

Shepard v. United States, [544 U.S. 13, 19-20, (2005)].

State v. Oller, 2017-Ohio-814, ¶ 37 (10th Dist.).

{¶ 13} The trial court did not err in denying Wolfe’s motion to have the jury

determine his status as a repeat violent offender. The repeat violent offender

specification was ancillary to the underlying criminal charge and, by statute, the court was

required to make the determination, not the jury. Wolfe’s first assignment of error is

overruled.

Tier I Sex Offender/Child Victim Offender Designation

{¶ 14} Wolfe’s second assignment of error states:

THE TRIAL COURT ERRED AS A MATTER OF LAW AND LACKED

JURISDICTION WHEN IT HELD THAT WOLFE WAS REQUIRED TO

REGISTER AS A TIER I SEX OFFENDER.

{¶ 15} According to Wolfe, there “was no sexual motive involved in the alleged

kidnapping,” and because “the trial court sua sponte imposed the requirement after

sentencing” and after he had filed his notice of appeal, the trial court lacked jurisdiction to

make the sex offender designation. The State responds the trial court was required to -7-

designate Wolfe a Tier I sex offender/child victim offender based upon his kidnapping

conviction, as the victim, D.C., was a minor.

{¶ 16} Wolfe was convicted of kidnapping in violation of R.C. 2905.01(A)(2).

“Child-victim oriented offense” is defined as any of a number of offenses, including

kidnapping under R.C. 2905.01(A)(2), committed by a person, regardless of the person's

age, when the victim is under 18 years of age and is not a child of the person who commits

the violation. R.C. 2950.01(C). R.C. 2950.01(D) defines a child victim offender as “a

person who is convicted of . . . any child-victim oriented offense.” Having been convicted

of kidnapping in violation of R.C. 2905.01(A)(2), Wolfe was a child-victim offender.

{¶ 17} R.C. 2950.01(E)(2) states: “Tier I sex offender/child-victim offender” means

any of the following: . . . “(2) A child-victim offender who is convicted of . . . a child-victim

oriented offense and who is not within either category of child-victim offender described

in division (F)(2) or (G)(2) of this section.” Divisions (F)(2) and (G)(2) apply to offenders

previously convicted of a sexually oriented offense. R.C. 2950.03(A)(2) requires a trial

court to notify offenders convicted of a child-victim oriented offense of their registration

duties, to provide an explanation of those duties, and to certify that the offender was

advised of those duties.

{¶ 18} Wolfe’s Tier I sex offender/child-victim offender designation attached by

operation of law. However, the trial court did not advise him of this fact prior to

sentencing, as it was required to do. See, e.g., State v. Sipple, 2021-Ohio-1319, ¶ 32

(1st Dist.) (all tier classifications under the Adam Walsh Act are part of the sanction and

must be included in the judgment entry). Here, the trial court filed its judgment entry on -8-

March 6, 2023; then, in May 2023, after Wolfe had appealed, it held a separate hearing

on the Tier 1 designation and filed an “amended termination entry,” which added the Tier

1 sex offender/child victim offender registration language. This procedure was improper,

as the trial court lacked jurisdiction to amend its judgment entry while an appeal was

pending. Thus, Wolfe is correct that the trial court lacked jurisdiction to impose the Tier

1 designation as it did.

{¶ 19} The trial court’s May 5, 2023 judgment which purported to add the Tier 1

designation is a nullity. However, as discussed below, this matter will be remanded to

the trial court for resentencing on other issues. At that time, the trial court should properly

give the Tier 1 sex offender/child victim offender advisements and include that matter in

its judgment entry.

{¶ 20} Wolfe’s second assignment of error is sustained in part and overruled in

part.

Merger

{¶ 21} Wolfe’s third assignment of error states:

THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE

WOLFE’S CONVICTIONS FOR KIDNAPPING AND GRAND THEFT.

{¶ 22} Wolfe did not object to the trial court’s failure to merge his kidnapping and

grand theft convictions. Failure to object waives all but plain error. McBride v. Quebe,

2006-Ohio-5128 (2d Dist.) Plain error exists “if the trial outcome would clearly have been

different, absent the alleged error in the trial court proceedings.” State v. Rollins, 2006-

Ohio-5399, ¶ 15 (2d Dist). “[T]o successfully prevail under plain error the substantial -9-

rights of the accused must be so adversely affected that the error undermines the ‘fairness

of the guilt determining process.’ ” State v. Ohl, 1991 WL 274508, *2 (5th Dist. Nov. 27,

1991), quoting State v. Gideons, 52 Ohio App.2d 70, 77 (5th Dist. 1977).

{¶ 23} R.C. 2941.25 governs multiple counts and states:

(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.

{¶ 24} We have noted that offenses may be of dissimilar import or significance

when they involve different victims, they are not alike in their resulting harm, or a

defendant's conduct places more than one person at risk. State v. Coleman, 2021-Ohio-

968, ¶ 6 (2d Dist.), citing State v. Williams, 2018-Ohio-1647 (2d Dist.). “ ‘[T]he defendant

bears the burden of establishing his entitlement to the protection, provided by R.C.

2941.25, against multiple punishments for a single criminal act.’ ” State v. Washington,

2013-Ohio-4982, ¶ 18, quoting State v. Mughni, 33 Ohio St.3d 65, 67 (1987). An

appellate court applies a de novo standard of review in reviewing a trial court's R.C.

2941.25 merger determination. State v. Williams, 2012-Ohio-5699, ¶ 28. -10-

{¶ 25} The kidnapping statute, R.C. 2905.01, states: “(A) No person, by force,

threat, or deception, or, in the case of a victim under the age of thirteen or mentally

incompetent, by any means, shall remove another from the place where the other person

is found or restrain the liberty of the other person, for any of the following purposes: . . .

(2) To facilitate the commission of any felony or flight thereafter.” R.C. 2913.02

proscribes theft and states: “(A) No person, with purpose to deprive the owner of property

. . . , shall knowingly obtain or exert control over . . . the property . . . in any of the following

ways: (1) Without the consent of the owner or person authorized to give consent[.]”

{¶ 26} As the State points out, Wolfe’s offenses involved separate victims, S.C.

and D.C. Moreover, stealing a car and kidnapping a child are not alike in their resulting

harms, namely S.C.’s loss of her means of transportation, and D.C.’s removal from his

mother’s care. We further observe that Wolfe likely put more than one person at risk,

either directly through physical injury during the theft of the vehicle or indirectly through

the dangerous situations that stolen vehicles can create. For these reasons, we

conclude that plain error is not demonstrated in the trial court’s failure to merge the

offenses. Wolfe’s third assignment of error is overruled.

Advisements under Reagan Tokes Law

{¶ 27} Wolfe’s fourth assignment of error is as follows:

THE TRIAL COURT ERRED WHEN IT FAILED TO FULLY ADVISE

WOLFE OF HIS RIGHTS UNDER THE RE[A]GAN TOKES LAW.

{¶ 28} The court advised Wolfe as follows at sentencing regarding the kidnapping

offense: -11-

Now, as I said, because this is subject to the Reagan Tokes and the

indeterminate part of the sentence, I want you to know it is presumed that

you will be released from prison at the conclusion of the eight-year prison

sentence in this case; however, it’s a rebuttable presumption, and the

Department of Rehabilitation and Corrections may rebut that presumption if

at a hearing held under 2967.271 the Department of Rehabilitation and

Corrections makes a specified determination regarding your conduct while

confined, your threat to society, whether or not you were in restrictive

housing if any while confined, and your security classification. And if the

Department of Rehabilitation and Corrections makes those specified

determinations, it can rebut that presumption and they may maintain your

incarceration after the expiration of the minimum term of eight years or after

the presumptive - - well, that doesn’t apply to you, but the department may

make the specified determinations to maintain your incarnation under these

previous provisions, but they cannot keep you any longer than that 12-year

prison term that I just discussed.

{¶ 29} The court was required by R.C. 2929.19(B)(2)(c)(iv) to notify Wolfe that for

the non-life, felony indefinite prison term for kidnapping, “the department may make the

specified determinations and maintain the offender's incarceration under the provisions

described in divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to the

limitation specified in section 2967.271 of the Revised Code; . . . .” The State concedes

that the trial court erred at sentencing by failing to properly advise Wolfe pursuant to this -12-

section, and no such advisement was included in the judgment entry.

{¶ 30} “Several of our sister districts have held that a sentence is contrary to law if

a trial court sentences an offender to an indefinite prison term under the Reagan Tokes

Law and fails [to] advise the offender of all the notifications set forth in R.C.

2929.19(B)(2)(c) at the sentencing hearing.” (Emphasis added.) State v. Thompson,

2021-Ohio-4027, ¶ 29 (2d Dist.), quoting State v. Massie, 2021-Ohio-3376, ¶ 18 (2d Dist.).

In Massie, we remanded the matter to the trial court for the sole purpose of resentencing

the defendant in accordance with R.C. 2929.19(B)(2)(c). Id. at ¶ 31, citing Massie at

¶ 25. The same is required here. Wolfe’s fourth assignment of error is sustained, and

the matter is remanded to the trial court for the purpose of resentencing consistent with

R.C. 2929.19(B(2)(c) and advising Wolfe of the specific notifications under the Reagan

Tokes Act.

Imposition of Restitution

{¶ 31} Wolfe’s fifth assignment of error is as follows:

THE TRIAL COURT PLAINLY ERRED BY NOT ADVISING WOLFE

OF HIS OBLIGATION TO PAY RESTITUTION AT SENTENCING.

{¶ 32} Wolfe asserts that the trial court erred in imposing restitution.

{¶ 33} The initial, March 6, 2023 judgment entry of conviction stated: “The

Defendant is ordered to make complete restitution to the victim, [S.C.], for economic loss

in the amount of $604.69, to be paid through the Montgomery County Clerk of Courts.”

The State incorrectly asserts that the court did not impose restitution at sentencing or in

its judgment entry, thereby rendering this assignment of error moot. The trial court did -13-

impose restitution in its judgment entry, although it did not address the issue at the

sentencing hearing.

{¶ 34} “R.C. 2929.18 authorizes the trial court to order a defendant to pay

restitution to the victim of the defendant's offense in an amount based on the victim's

economic loss. If the trial court imposes restitution, at sentencing, the court must

determine the amount of restitution to be made by the offender. R.C. 2929.18(A)(1).”

State v. Russell, 2018-Ohio-2571, ¶ 10 (2d Dist.). A trial court's failure to establish the

amount of restitution at the sentencing hearing constitutes plain error requiring a remand.

Id., citing State v. Collins, 2006-Ohio-3036, ¶ 4 (2d Dist.).

{¶ 35} Because the trial court included restitution in the judgment entry but did not

address or determine the amount of restitution at sentencing, plain error is demonstrated.

We will remand for the court to properly consider the issue of restitution.

{¶ 36} Wolfe’s fifth assignment of error is sustained.

Denial of Separate Trials

{¶ 37} Wolfe’s sixth assignment of error states:

THE TRIAL COURT ERRED WHEN IT OVERRULED WOLFE’S

MOTION FOR SEPARATE TRIALS.

{¶ 38} Wolfe filed a pretrial motion for separate trials in which he argued that: 1)

the kidnapping and grand theft allegations were unrelated to the petty theft allegations;

2) the evidence regarding kidnapping and grand theft would not be admissible at trial on

the petty theft charge; and 3) the kidnapping and grand theft occurred at a location distinct

from the location of the petty theft. The State opposed the motion, and the trial court -14-

overruled it.

{¶ 39} The trial court determined that Wolfe had failed to meet his burden of

affirmatively showing that his rights would be prejudiced if the grand theft and kidnapping

charges were not severed from the petty theft charge. It also found that the evidence as

to each of the counts was simple and direct. It stated:

. . . Defendant has not furnished the Court with sufficient information

so that it can weigh the considerations favoring joinder against Defendant’s

right to a fair trial. Defendant’s arguments as to the relationship and

admissibility of the allegations are conclusory. Defendant’s argument as

to the location of the alleged offenses is vague. The fact that one offense

is alleged to have occurred at a different location than another offense may

be relevant to a motion to sever. But Defendant has failed to provide the

Court with any information as to why his rights would be prejudiced because

Counts One and Two are alleged to have occurred in a different location

than Count Three.

{¶ 40} “The law favors joinder to prevent successive trials, to minimize the

possibility of incongruous results in successive trials before different juries, to conserve

judicial resources, and to diminish the inconvenience to witnesses.” State v. Broadnax,

2007-Ohio-6584, ¶ 33 (2d Dist.). “Even if offenses are properly joined pursuant to

Crim.R. 8(A), a defendant may move to sever the charges pursuant to Crim.R. 14. Id. at

¶ 37. Crim.R. 14 requires the trial court to order separate trials “[i]f it appears that a

defendant . . . is prejudiced by a joinder of offenses[.]” -15-

{¶ 41} We note that Wolfe failed to renew his objection to joinder at the conclusion

of the evidence. “. . . [I]f a motion for prejudicial misjoinder is not renewed at the close

of the state's case or at the conclusion of the evidence, a defendant forfeits his ability to

raise the issue on appeal and we review the matter only for plain error.” State v. McComb,

2017-Ohio-4010, ¶ 51 (2d Dist.), citing State v. Stargell, 2016-Ohio-5653, ¶ 12 (2d Dist.).

Therefore, we review this assignment of error pursuant to plain error analysis.

{¶ 42} “A defendant claiming error in the trial court's refusal to allow separate trials

of multiple charges under Crim.R. 14 has the burden of affirmatively showing that his

rights were prejudiced; he must furnish the trial court with sufficient information so that it

can weigh the considerations favoring joinder against the defendant's right to a fair trial,

and he must demonstrate that the court abused its discretion in refusing to separate the

charges for trial.” State v. Torres, 66 Ohio St.2d 340 (1981), syllabus. “When a

defendant claims that he was prejudiced by the joinder of multiple offenses, a court must

determine (1) whether evidence of the other crimes would be admissible even if the

counts were severed, and (2) if not, whether the evidence of each crime is simple and

distinct.” State v. Schaim, 65 Ohio St.3d 51, 59 (1992), citing State v. Hamblin, 37 Ohio

St.3d 153, 158-159 (1988). “If the evidence of other crimes would be admissible at

separate trials, any ‘prejudice that might result from the jury's hearing the evidence of the

other crime in a joint trial would be no different from that possible in separate trials,’ and

a court need not inquire further.” Id., quoting Drew v. United States, 331 F.2d 85, 90 (D.C.

Cir. 1964).

{¶ 43} “[E]vidence is ‘simple and direct,’ where (1) proof of each offense is -16-

‘separate and distinct’ or could be ‘readily separated’; (2) the jury is unlikely to be

confused; and (3) ‘the evidence of each crime is uncomplicated.’ ” (Citations omitted.)

State v. Kocevar, 2023-Ohio-1513, ¶ 22 (2d Dist.). “Furthermore, the simple and direct

test ‘focuses on whether the trier of fact is likely to consider “evidence of one [offense] as

corroborative of the other . . . .” ’ ” Id. at ¶ 23, quoting State v. Wiles, 59 Ohio St.3d 71,

77 (1991), quoting Dunaway v. United States, 205 F.2d 23, 27 (D.C. Cir. 1953). “Joinder

may be prejudicial when the offenses are unrelated and the evidence as to each is very

weak, . . . but it is otherwise when the evidence is direct and uncomplicated and can

reasonably be separated as to each offense. . . .” Torres at 343-344; see also State v.

Clinton, 2017-Ohio-9423, ¶ 52 (a “jury is capable of segregating the proof of multiple

charges when . . . the evidence of each crime is uncomplicated.”)

{¶ 44} According to the evidence at trial, Wolfe’s offenses occurred close in time

and place and in a continuing or ongoing course of conduct. Wolfe went to Angie’s

Tavern on November 15, 2021, where he repeatedly looked out the front windows for

about an hour in the direction of DashMart. Wolfe then went to the side patio at Angie’s,

which had a view to DashMart. He eventually exited from the side patio without paying

his bill at Angie’s.

{¶ 45} S.C. had parked her rental vehicle at DashMart while waiting to pick up an

order to deliver. D.C. was in the back seat. When the DoorDash order was ready, S.C.

went into DashMart, leaving D.C. in the backseat with her car running. Security video

showed Wolfe leave Angie’s, enter S.C.’s vehicle, and drive away. Moments later, S.C.

emerged from DashMart and realized that her car and child were gone. -17-

{¶ 46} Wolfe drove to Carmel’s on Shroyer Road, where he ordered D.C. out of

the vehicle. Wolfe then drove away, and D.C. went inside and called his mother. With

the help of the Dayton Police Department, he was reunited with her. The following day,

Xenia Police came into contact with Wolfe and found the keys to S.C.’s car in his

backpack. The bartender at Angie’s identified Wolfe in a photo spread and testified

about the petty theft from the tavern.

{¶ 47} We conclude that plain error is not demonstrated. Even if we assume that

evidence of the kidnapping and grand theft would not have been admissible at a trial for

only the petty theft, there was no basis to believe that the jury would be unable to

distinguish the evidence pertaining to the petty theft offense from the evidence pertaining

to the grand theft and kidnapping offenses. Put differently, proof of each offense was

distinct and could be readily separated, was uncomplicated, and thus was unlikely to

confuse the jury. None of the evidence relating to the petty theft was corroborative of

the theft of S.C.’s car with D.C. inside.

{¶ 48} Wolfe’s sixth assignment of error is overruled.

Body and Cruiser Camera Videos

{¶ 49} Wolfe’s seventh, fourteenth, and nineteenth assignments of error relate to

body and cruiser camera videos. Wolfe argues, respectively, that the State withheld

allegedly exculpatory body camera video footage in which D.C. described his attacker as

black; that the court failed to admit other allegedly exculpatory body camera video footage

for impeachment purposes; and that the admission of a statement by D.C. on a cruiser

camera video violated Wolfe’s right to confrontation. We will consider these assignments -18-

of error together.

{¶ 50} In his seventh assignment of error, Wolfe argues that the State failed to

maintain materially exculpatory evidence, specifically a body camera video in which the

child identified an individual of a different race as the car thief close in time to the incident.

Wolfe asserts that the video was materially exculpatory in this respect. Although the trial

court excluded the testimony about the statement as hearsay, the child’s statement could

have been considered an excited utterance and thus allowable under Evid.R. 803,

regardless of whether the child was available. There was no other contemporaneous

evidence from the incident that could substitute for its loss.

{¶ 51} “The Due Process Clause of the Fourteenth Amendment to the United

States Constitution protects a criminal defendant from being convicted when the State

either fails to preserve materially exculpatory evidence or destroys, in bad faith, potentially

useful evidence.” State v. McClain, 2016-Ohio-838, ¶ 21 (2d Dist.), citing State v. White,

2015-Ohio-3512, ¶ 58 (2d Dist.). “Evidence is ‘materially exculpatory’ if it (1) possesses

‘an exculpatory value that was apparent before the evidence was destroyed’ and (2) is ‘of

such a nature that the defendant would be unable to obtain comparable evidence by other

reasonably available means.’ ” Id., citing California v. Trombetta, 467 U.S. 479, 489

(1984); State v. Powell, 2012-Ohio-2577, ¶ 74.

{¶ 52} “In contrast, evidence is not materially exculpatory if it is merely potentially

useful.” State v. Cox, 2013-Ohio-4941, ¶ 88 (2d Dist.). “Potentially useful” evidence

“may or may not have incriminated the defendant. The failure to preserve evidence that

by its nature or subject is merely potentially useful violates a defendant's due process -19-

rights only if the police or prosecution acted in bad faith.” Id. Bad faith “implies

something more than bad judgment or negligence.” Powell at ¶ 81. “It imports a

dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty

through some ulterior motive or ill will partaking of the nature of fraud.” (Citations omitted.)

Id. The defendant bears the burden to prove that the evidence in question was materially

exculpatory, not merely potentially useful. Id. at ¶ 74.

{¶ 53} The following exchange occurred at the final pretrial conference:

THE COURT: [Prosecutor], have you provided to Mr. Wolfe everything that

you have available in this case?

[PROSECUTOR]: Yes, Your Honor. And that has been detailed in a

discovery receipt. There are numerous body cam videos that have been

turned over, other videos. I mean, phone calls, numerous things have

been turned over to him. And it’s everything that I have in my possession.

And it’s detailed on a discovery receipt.

{¶ 54} Wolfe relied on the statement of the bartender at Angie’s. When asked

whether she knew what was going on at DashMart when she saw law enforcement

officers respond there, she stated, “I just remember this lady being hysterical and I walked

up and I said, what happened? And she said that her car was stolen. And I said was it

a white guy? And at that time the police were telling [sic] that it was a black man that

stole the car.” The bartender further stated, “I’m telling you I had this feeling about this

guy that was just at my bar.”

{¶ 55} Wolfe also points to the following exchange during the bartender’s cross- -20-

examination:

Q. [BY THE DEFENSE]: But when you walked across the street, you

testified that you walked across the street, you did alert the Dayton police

at that time that somebody had walked out on a bar tab?

A. It came up in the conversation of, could this be the same guy that stole

the car? Yeah, that came up.

...

Q. And when that conversation came up, is that at the same time that they

informed you that it was a black male they believed had taken the vehicle?

A. They said that, but again, just because I have a [credit] card [of the

suspect] doesn’t determine if you’re white or black. . . . You also, or the

person in this video is also wearing all black, so.

{¶ 56} Dayton Police Officer Christopher White responded to Dashmart on the day

of the incident and then proceeded to Carmel’s, where he located D.C. When White was

asked about the existence of any body camera video of his conversation with D.C. about

the incident, White stated that his body camera had been “at the docking station, at the

district, charging, when the call came out. And due to the nature of the call, I rushed

straight to DashMart without my camera. And I do not recall if I picked it back up and put

it on my body before going on Carmel’s run.” Thus, Wolfe’s assertion that White testified

that he believed he had had his body camera on when he found the child mischaracterizes

the evidence.

{¶ 57} Finally, Wolfe points to the cross-examination of Dayton Police Detective -21-

Brandan Veregee, wherein the following exchange occurred:

Q. Did you ignore evidence that showed material to innocence [sic] in the

allegations of this case either through recorded prior statements of the

alleged victim or other evidence that indicated innocence?

A. No. . . . I turned over absolutely everything to the Prosecution.

When asked if he had viewed audio or video footage of the child in which the child stated

that a black man had been driving the vehicle, Veregee responded, “I do believe the 11

year old who was asleep in the backseat, did make that statement to an officer.” On

redirect examination, Veregee testified that D.C. “said that he - - the person who got in

his car sounded black. That was his words.” He further clarified, “But obviously after I

watched the video, after everyone watched the video, the person who got in that car was

not black.”

{¶ 58} The jury heard from both the bartender and Det. Veregee that D.C. had

reported that the suspect in his kidnapping sounded black or was black. This testimony

undercuts Wolfe’s assertion that there was “no other contemporaneous evidence from

the incident that could substitute” for the loss of the alleged video. Moreover, White did

not remember if he had retrieved his body camera before proceeding to Angie’s, and Det.

Veregee testified that he had turned “absolutely everything” over to the prosecution. In

other words, there is no evidence that materially exculpatory evidence even existed, much

less that it was withheld by the State. Wolfe also has not shown that any video evidence

of D.C.’s statement would be materially exculpatory, especially given the overwhelming

evidence of Wolfe’s guilt. -22-

{¶ 59} Wolfe’s seventh assignment of error is overruled.

{¶ 60} In his fourteenth assignment of error, Wolfe asserts that the “trial court

refused to admit exculpatory statements recorded by the police officers[’] body cam . . .

which the alleged victim made during the police investigation.” Wolfe refers to D.C.’s

alleged statement to a police officer that “It was a black man. He sounded black.”

{¶ 61} The admission or exclusion of evidence rests soundly within the trial court's

discretion. State v. Sage, 31 Ohio St.3d 173 (1987), paragraph two of the syllabus. A

trial court's decision concerning the admission or exclusion of evidence will not be

reversed absent an abuse of that discretion. Id. at 182.

{¶ 62} Hearsay, which is generally inadmissible, “is a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted in the statement.” Evid.R. 801(C).

{¶ 63} “An appellate court will not reverse a judgment for improper exclusion of

evidence on a basis of error that is harmless. . . . Courts have not hesitated to find that

error is harmless where the excluded evidence is merely cumulative to other compelling

evidence.” State v. West, 2006-Ohio-6259, ¶ 9 (10th Dist.). “Further, an error is

harmless if the jury would not have rendered a different verdict had the excluded evidence

been admitted at trial.” Id., citing Surovec v. LaCouture, 82 Ohio App.3d 416 (2d Dist.)

{¶ 64} In support of his argument, Wolfe directs our attention to the testimony of

Dayton Police Officer Zachary Boone. Boone testified that he responded to DashMart

after 11:00 p.m. on November 15, 2021, based on a report of a “grand theft auto in

progress” and call comments that accompanied the dispatch indicating that a child had -23-

been taken with the vehicle. Other officers were already on scene, and Officer Boone

“took the responsibility of trying to locate the vehicle’s [identifying] information.” He

learned from S.C. that the vehicle had been rented by her friend and that it was a red

Hyundai Kona with a Florida license plate. Boone stated that another officer brought

D.C. to the scene around the time Boone arrived there.

{¶ 65} During Boone’s cross-examination, Wolfe sought to play the entirety of

Boone’s body camera footage from DashMart. Outside the presence of the jury, the

State objected as follows:

[PROSECUTOR]: . . . I don’t think it’s been properly introduced. Again, I

also don’t see that he has an exhibit that’s specifically marked separate from

all the other documents on the flash drive.

In addition to that, I have viewed that body-worn camera, and there

are numerous conversations that would constitute hearsay with people at

DashMart, with a friend of [S.C.], with S.C.’s son. Those would all be

hearsay.

So I would object to it being played without it being properly cut to

simply portions that pertain to witnesses we’ve already heard from.

{¶ 66} The court indicated that “anything from the body-worn camera that would

differ in some way might - - and I use might strongly here - - be admissible under certain

circumstances. But the wholesale playing of the body camera footage, for the various

things that Ofc. Boone testified to today, I’m not necessarily inclined to allow.” When

asked if there was an identifiable portion of the video that he wanted admitted, Wolfe -24-

stated that he wanted to admit the “original firsthand information being obtained at the

scene of the crime by the Dayton Police Department, and the documentation being made

there concerning the vehicle registration and information.” Wolfe further asserted that

Boone had not talked with D.C. himself but heard information as he was “going back and

forth from the police cruiser to the alleged victims” while gathering information about the

stolen vehicle, and that D.C. had made “inconsistent” statements that a black man had

taken the vehicle and that the suspect sounded black. The court advised Wolfe that any

statements by D.C. on the video would not be admissible because they were hearsay.

When Boone’s cross-examination resumed, he was asked whether he had preciously

testified that D.C.’s description of the suspect had been on his audio/video camera. He

stated that he had said that he did not recall speaking with D.C.; his objective had been

“to locate the vehicle information, which obviously was a challenge. And that was where

my primary focus was the entire time.”

{¶ 67} Notably, Boone did not deny speaking to D.C. at the scene; he stated that

he did not recall doing so and had been primarily focused on obtaining information about

the vehicle. Even if the video would have impeached Boone’s testimony that he did not

recall speaking to D.C. at the scene -- such that the court erred in excluding it on the basis

of hearsay -- any error was harmless. In other words, even assuming that D.C. had, in

fact, told Boone that the suspect was black or sounded black on the video, and if that

specific portion of the video had been admitted into evidence, we are unpersuaded that

the outcome of the trial would have been different, given the overwhelming evidence of

Wolfe’s guilt. The alleged statement would also have been cumulative of the other -25-

testimony that officers had been told by D.C. that the suspect was black or sounded black.

{¶ 68} Wolfe’s fourteenth assignment of error is overruled.

{¶ 69} Finally, in his nineteenth assignment of error, Wolfe argues that that the

admission of a statement by D.C. on a cruiser camera video violated Wolfe’s right to

confrontation. The “Sixth Amendment right to confrontation of witnesses does not

extend to nontestimonial hearsay.” State v. Brown, 2022-Ohio-716, ¶ 10 (2d Dist.), citing

State v. Norris, 2015-Ohio-624, ¶ 13 (2d Dist.), citing State v. Stahl, 2006-Ohio-5482,

¶ 21. “Evid.R. 803(2) excludes an excited utterance from the hearsay rule. An excited

utterance is ‘[a] statement relating to a startling event or condition made while the

declarant was under the stress of excitement caused by the event or condition.’ ” Brown

at ¶ 10.

{¶ 70} Prior to Officer White’s testimony, the State represented to the court that it

intended to play the cruiser camera video recorded at the time White put D.C. into his

cruiser. After viewing the video outside the presence of the jury, the court stated:

Noting for the record, the only statement that the little boy made was, “I’m

so scared”. And I need to hear, I guess, from the officer. I can see certain

things on the video with respect to his breathing, but I would probably need

to hear from the officer as to his demeanor. So if the officer were to testify,

and the demeanor meets such, then I would allow that one minute clip to be

admitted under Evidence Rule 803(2), as an excited utterance. And

although it’s an out-of-court statement, the witness availability doesn’t

matter. It was contemporaneous with a startling event. -26-

. . . He was not questioned by the police in any manner, so there weren’t

any answers to police questioning at the time.

{¶ 71} Officer White testified that, when he made contact with D.C., the child was

“pretty trepidatious,” and White “could tell that he was pretty fearful, timid, clearly had just

gone through something that left him upset and confused.” The video was then played

for the jury.

{¶ 72} The trial court did not abuse its discretion in admitting D.C.’s statement as

a nontestimonial excited utterance. The statement was made while D.C. was under

emotional distress, and Wolfe’s right to confront witnesses against him was not violated.

{¶ 73} Wolfe’s nineteenth assignment of error is overruled.

Confrontation of a Victim

{¶ 74} Wolfe’s eighth assignment of error states:

THE TRIAL COURT ERRED WHEN IT DID NOT PUT THE VICTIM

ON THE STAND, VIOLATING THE APPELLANT’S RIGHT TO

CONFRONTATION AND CROSS EXAMINATION.

{¶ 75} According to Wolfe, D.C. was the only person who could have established

the elements of the offense of kidnapping, and Wolfe’s constitutional rights were violated

by the fact that D.C. did not testify. He asserts that the State obtained a conviction

without giving Wolfe the opportunity to confront and cross-examine D.C. The State

responds that it had no obligation to call specific witnesses at trial, and its decision not to

call D.C. to testify did not violate Wolfe’s right to confront witnesses. We agree with the -27-

State.

{¶ 76} The Confrontation Clause of the Sixth Amendment states: “In all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses

against him.” “The Fourteenth Amendment renders the Clause binding on the States.”

Michigan v. Bryant, 562 U.S. 344, 352 (2011), citing Pointer v. Texas, 380 U.S. 400, 403

(1965). The Confrontation Clause bars “admission of testimonial statements of a witness

who did not appear at trial unless he was unavailable to testify, and the defendant had

had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-

54 (2004). Examples of testimonial statements include: ex parte in-court testimony or its

functional equivalent, such as affidavits and prior testimony that the defendant was unable

to cross-examine, or pretrial statements that the declarants would reasonably expect to

be used in a prosecution; extra-judicial statements contained in formal testimonial

materials such as depositions, prior testimony, or confessions; and statements made

under circumstances that would lead an objective witness to believe that the statement

would be available for use at a later trial. Id. at 51-52. Statements made to police

officers during an ongoing emergency are generally not considered testimonial. State v.

Jones, 2023-Ohio-380, ¶ 84 (8th Dist.), citing Davis v. Washington, 547 U.S. 813 (2006)

(whether a statement is testimonial depends on the “primary purpose” of the statement).

{¶ 77} Wolfe’s reliance upon the Confrontation Clause is misplaced. The

admitted statements by D.C. were non-testimonial; they were made in the course of an

ongoing emergency, namely his kidnapping and the theft of S.C.’s car, and were

exceptions to the hearsay rule. We note that in State v. Evans, 2008-Ohio-2032 (8th -28-

Dist.), the Eighth District held that the minor victim's failure to testify did not render the

evidence insufficient or preclude a conviction for kidnapping. Id. at ¶ 95-96. Other

witnesses testified about the events, and their testimony was sufficient to support the

conviction. Id. The same is true here. Ohio law allows for convictions to be sustained

based on corroborative evidence from other sources, even in the absence of the victim's

direct testimony. Wolfe’s eighth assignment of error is overruled.

Identification Evidence at Suppression Hearing

{¶ 78} Wolfe’s ninth assignment of error states:

THE TRIAL COURT VIOLATED THE APPELLANT’S RIGHT TO

DUE PROCESS OF LAW AND CROSS EXAMINATION WHEN THE TRIAL

COURT FAILED TO PUT THE WITNESS WHO MADE AN I.D. ON THE

WITNESS STAND AT THE HEARING ON A MOTION TO SUPPRESS

EYEWITNESS IDENTIFICATION.

{¶ 79} Wolfe asserts that the bartender at Angie’s, who identified him by means of

a photo array prepared by the police, should have been required to testify at the October

27, 2022 suppression hearing. Because she did not, he asserts that the trial court

deprived him of the right to suppress an illegally-obtained eyewitness identification. The

State responds that, because the pretrial identification process utilized by law

enforcement officers was not unduly suggestive, Wolfe’s right to due process was not

violated, and there was no need to call the bartender as a witness at the suppression

hearing. We agree with the State.

{¶ 80} Due process requires suppression of pretrial identification of a suspect “only -29-

if the photographic identification procedure was so impermissibly suggestive as to give

rise to a very substantial likelihood of misidentification.” Neil v. Biggers, 409 U.S. 188,

197-198 (1972). “The defendant must first show that the identification procedure was

unduly suggestive.” State v. Frazier, 2016-Ohio-727, ¶ 17. “ ‘A lineup is unduly

suggestive if it steers the witness to one suspect, independent of the witness's honest

recollection.’ ” Id., quoting State v. Adams, 2015-Ohio-3954, ¶ 208. “If the pretrial

identification procedure was not unfairly suggestive, any remaining questions as to the

identification's reliability go to the weight of the identification, not its admissibility, and no

further inquiry into the reliability of the identification is required.” Id., quoting Adams at

¶ 209; State v. Williams, 2015-Ohio-1403, ¶ 13 (2d Dist.). “If, on the other hand, the

defendant shows that the pretrial identification procedure was unduly suggestive, the

court must then consider whether the identification, viewed under the totality of the

circumstances, is reliable despite the suggestive procedure.” Id. at ¶ 18. “In reviewing

the likelihood that the circumstances resulted in a misidentification, courts consider the

opportunity of the witness to view the perpetrator at the time of the offense, the witness's

degree of attention, the accuracy of the witness's prior description of the perpetrator, the

level of certainty demonstrated by the witness at the confrontation, and the length of time

between the crime and the confrontation.” Id., citing Biggers at 199-200; Manson v.

Brathwaite, 432 U.S. 98 (1977); State v. Chaffin, 2014-Ohio-2671, ¶ 16 (2d Dist).

{¶ 81} “Reliability of the pretrial identification is the linchpin in determining its

admissibility.” Frazier at ¶ 19, citing Manson at 114. “ ‘So long as the identification

possesses sufficient aspects of reliability, there is no violation of due process.’ ” Id., -30-

quoting State v. Sherls, 2002 WL 254144, *3 (2d Dist. Feb. 22, 2002).

{¶ 82} We review a trial court's refusal to suppress a pretrial identification for an

abuse of discretion. State v. Wilson, 2009-Ohio-1038, ¶ 19 (2d Dist.). “ ‘Abuse of

discretion’ has been defined as an attitude that is unreasonable, arbitrary or

unconscionable.” (Citation omitted). AAAA Ents., Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990). It is well-settled that most abuses

of discretion “will result in decisions that are simply unreasonable, rather than decisions

that are unconscionable or arbitrary.” Id. “A decision is unreasonable if there is no

sound reasoning process that would support that decision.” Id.

{¶ 83} Detectives Veregee and Hofacker testified at the suppression hearing.

Veregee had used a folder system to prepare a photo lineup in accordance with R.C.

2933.83. He utilized Justice Web to auto-populate photos of individuals similar in

appearance to Wolfe. He used 10 folders, five of which had photos and five of which did

not, and he numbered them one through 10, alternating between folders with and without

photos. He prepared the necessary instructions and asked Det. Hoffacker to administer

the photo array. Hofacker had no knowledge of the case. He presented the photo array

to the Angie’s bartender on December 9, 2021. Although Det. Veregee accompanied

Hofacker to Angie’s, the detectives did not discuss the matter, and Veregee remained in

a separate part of the bar while Hofacker administered the photo array.

{¶ 84} Det. Hofacker testified that he was familiar with the folder system, having

administered many such line-ups. He read the instructions to the bartender and initialed

them to so indicate, and he signed his name to reflect that he was the “blind -31-

administrator.” The bartender chose photo number 7, the photo of Wolfe. At Hofacker’s

instruction, the bartender wrote that number 7 was the person she served before the

incident, and she was “9 out of 10 on certainty.” She signed and printed her name.

Hofacker’s interaction with the bartender lasted approximately eight minutes.

{¶ 85} The trial court reviewed an audio recording of the photo identification, noting

that the bartender took less than a minute to go through the folders and identify picture

number 7. The court denied the motion to suppress the identification, stating:

In reviewing the credible testimony presented at the hearing, as well as the

audio recording in State’s Exhibit 2, the court finds there was nothing unduly

suggestive about the process or procedure utilized in showing [the

bartender] the photographs utilizing the folder system. The folders were

prepared in accordance with R.C. 2933.83 and all procedures were followed

when showing [the bartender] the folders. The Court finds that the

Defendant has not demonstrated that the identification procedure was

unduly suggestive. The identification by [the bartender], viewed under the

totality of the circumstances, was reliable.

{¶ 86} We have reviewed the testimony at the suppression hearing and, in our

view, the trial court correctly found that the identification procedure was not unduly

suggestive. Further, although the bartender was not called to testify at the suppression

hearing, she did testify at trial and was subject to cross-examination. Wolfe’s ninth

assignment of error is overruled.

{¶ 87} Wolfe’s tenth assignment of error states: -32-

THE TRIAL COURT COMMITTED PREJUDICIAL PLAIN ERROR

WHEN IT IMPROPERLY INSTRUCTED THE JURY OF THE WEIGHT OF

CIRCUMSTANTIAL EVIDENCE IN COMPARISON WITH DIRECT

EVIDENCE.

{¶ 88} Wolfe asserts that the State did not produce any direct evidence of

kidnapping and theft, and he asks us to reverse his convictions based on plain error. We

note that Wolfe filed objections to the State’s proposed jury instructions, arguing that the

jury instructions erroneously instructed the jurors that circumstantial and direct evidence

were “of equal weight.” He contends that he “preserved” his objections to the instructions

at the end of the trial. As relevant to this argument, the court instructed the jury that it

“may consider both direct and circumstantial evidence. Direct and circumstantial

evidence are of equal weight.”

{¶ 89} In Ohio, it is well-established that “a defendant may be convicted solely on

the basis of circumstantial evidence.” State v. Nicely, 39 Ohio St.3d 147, 151 (1988).

“Circumstantial evidence and direct evidence inherently possess the same probative

value.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph one of the syllabus.

“Circumstantial evidence is defined as ‘[t]estimony not based on actual personal

knowledge or observation of the facts in controversy, but of other facts from which

deductions are drawn, showing indirectly the facts sought to be proved. . . .’ ” Nicely at

150, quoting Black's Law Dictionary (5 Ed. 1979).

“Since circumstantial evidence and direct evidence are indistinguishable so

far as the jury's fact-finding function is concerned, all that is required of the -33-

jury is that it weigh all of the evidence, direct and circumstantial, against the

standard of proof beyond a reasonable doubt.” [Jenks at 272].

“ ‘Circumstantial evidence is not only sufficient, but may also be more

certain, satisfying, and persuasive than direct evidence.’ ” State v.

Hawthorne, [2011-Ohio-6078 (8th Dist.)], quoting Michalic v. Cleveland

Tankers, Inc., [364 U.S. 325, 330 (1960).]

State v. Rodano, 2017-Ohio-1034, ¶ 36 (8th Dist.). Based upon the foregoing, Wolfe’s

tenth assignment of error is overruled.

Record on Appeal

{¶ 90} Wolfe’s eleventh assignment of error states:

THE TRIAL COURT VIOLATED DUE PROCESS OF LAW AND

EQUAL PROTECTION OF THE LAW WHEN IT DID NOT TRANSCRIBE A

COMPLETE RECORD FOR APPEAL AND REFUSED TO SUPPLEMENT

THE RECORD PURSUANT TO APP.R. 9(E).

{¶ 91} Wolfe asserts that the trial court failed to transcribe the jury instructions and

include them in the record. However, the jury instructions were recorded in Volume V of

the trial transcript at pages 1040-1054. Wolfe’s eleventh assignment of error is

Hearing on Motion to Suppress Surveillance Video

{¶ 92} Wolfe’s twelfth assignment of error states: -34-

THE TRIAL COURT VIOLATED THE APPELLANT’S RIGHT TO A

SUPPRESSION HEARING ON A MOTION TO SUPPRESS VIDEO

{¶ 93} Wolfe argues that the trial court “deprived [him] of a suppression hearing

which would have definitely resulted in the suppression of tampered evidence,” namely

surveillance videos from Angie’s Tavern. The State responds that a motion to suppress

is not the proper vehicle to challenge the authenticity of videotape evidence. We agree

with the State.

{¶ 94} The Third District has observed:

The Fourth Amendment to the United States Constitution . . .

provides for “[t]he right of the people to be secure . . . against unreasonable

searches and seizures[.]” If evidence is obtained through actions that violate

an accused's Fourth Amendment rights, exclusion of the evidence at trial is

mandated. However, the constitutional proscriptions of the Fourth

Amendment and the exclusionary rule apply only to government action and

not to the actions of private persons. Evidence discovered and seized by

private persons is admissible in a criminal prosecution regardless of

whether such evidence was obtained by legal or illegal methods, so long as

there is no government participation in the search.

State v. Meyers, 2001-Ohio-2282, ¶ 41 (3d Dist.).

{¶ 95} “A ‘motion to suppress’ is defined as a ‘[d]evice used to eliminate from the

trial of a criminal case evidence which has been secured illegally, generally in violation of -35-

the Fourth Amendment (search and seizure), the Fifth Amendment (privilege against self

incrimination), or the Sixth Amendment (right to assistance of counsel, right of

confrontation etc.), of U.S. Constitution.’ ” State v. French, 72 Ohio St.3d 446, 449

(1995) quoting Black's Law Dictionary (6 Ed.1990). Thus, a motion to suppress is the

proper vehicle for raising constitutional challenges based on the exclusionary rule first

enunciated by the United States Supreme Court in Weeks v. United States, 232 U.S. 383

(1914), and made applicable to the states in Mapp v. Ohio, 367 U.S. 643 (1961). French

at 449.

{¶ 96} In its written decision overruling Wolfe’s motion to suppress the surveillance

video evidence from Angie’s, the trial court stated:

Defendant seeks to suppress video evidence obtained from Angie’s Bar.

Defendant argues that the videos have been altered because the date and

time is incorrect and that the video footage itself has been edited. The

Defendant admits that he does not own Angie’s Bar and has no control over

the video recording equipment inside Angie’s Bar. The Court explained to

the Defendant that he cannot seek to suppress evidence that was not

obtained in violation of his [F]ourth [A]mendment rights. Further, the Court

explained whether or not the video evidence is admissible will be

determined at trial. The Defendant is free to obtain a forensic

analyst/expert to testify at trial if he so wishes but a Motion to Suppress is

not the proper vehicle to exclude this evidence from being introduced at

trial. Therefore, the Defendant’s Motion is overruled. -36-

{¶ 97} Wolfe’s motion to suppress the video evidence from Angie’s was not based

upon Fourth Amendment search and seizure principles but rather on the alleged

inauthenticity of the evidence. Evid.R. 901 governs the requirement for authentication

or identification as a condition precedent to admissibility at trial to ensure that the

evidence presented is what its proponent claims it to be. And, as will be discussed

further below, the trial court granted Wolfe’s motion for an expert in the field of audio/video

technology to examine the evidence. The trial court did not err in overruling Wolfe’s

motion to suppress the video evidence from Angie’s. Wolfe’s twelfth assignment of error

is overruled.

Right to Compulsory Process

{¶ 98} Wolfe’s thirteenth assignment of error states:

COMPULSORY PROCESS.

{¶ 99} Wolfe argues that the trial court violated his right to compulsory process

“when it allowed subpoenaed parties to ignore subpoena duces tecum and did not enforce

subpoenas” in accordance with Crim.R. 17(G), and then allowed some of the subpoenaed

parties in the Dayton Police Department “to quash subpoenas to exculpatory and

favorable evidence.” He specifically references subpoenas issued on October 18, 2022,

and January 9 and 17, 2023. The State responds that “Wolfe was provided with the

assistance of standby counsel to consult with Wolfe on legal procedures for enforcing

compliance with subpoenas.”

{¶ 100} As noted by the Sixth Appellate District: -37-

An accused shall enjoy the right to have compulsory process for

obtaining witnesses in the accused's favor under both the Sixth Amendment

to the United States Constitution and Article I, Section 10 of the Ohio

Constitution. The right to compulsory process has been described as “the

right to present a defense, the right to present the defendant's version of

the facts as well as the prosecution's to the jury so it may decide where the

truth lies. . . . This right is a fundamental element of due process of law.”

[Washington v. Texas, 388 U.S. 14, 19 (1967)]. The manner of enforcing

the constitutional right to compulsory process is provided by R.C. 2945.45

(“Subpoenas to issue to any county”) and Crim.R. 17.

State v. Santibanaz, 2023-Ohio-3404, ¶ 13 (6th Dist.)

{¶ 101} “When a subpoena is left at a witness’ usual place of residence, or

business location, or place of employment, and the witness has actual knowledge of the

subpoena, service of summons has been completed.” State v. Fornash, 2004-Ohio-797,

¶ 10, 15 (12th Dist.) (where there was no evidence that a witness had actual knowledge

of a residential subpoena, she had not been properly served and was not required to

appear), citing State v. Castle, 92 Ohio App.3d 732, 734 (1994); Denovchek v. Trumbull

Cty. Bd. of Commrs., 36 Ohio St.3d 14 (1988); Crim.R. 17(D). “A witness's failure to

obey a duly served subpoena constitutes contempt of court.” Fornash at ¶ 10, citing

Castle at 735.

October 18, 2022 Subpoenas for Suppression Hearing

{¶ 102} On October 18, 2022, Wolfe issued six subpoenas for witnesses to appear -38-

at the suppression hearing to be held on October 27, 2022, on the issue of identification.

As noted above, Detectives Veregee and Hofacker appeared and testified regarding the

photo spread compiled and administered by them to the bartender. The only witness

whose failure to appear was brought to the court’s attention was the bartender at Angie’s.

The record reflects that an initial subpoena was sent to the bartender at Angie’s Tavern

on October 18, 2022, because her home address was unknown; the subpoena listed the

time to appear as 1:30 p.m. The subpoena requested that the bartender provide

testimony and a “driver’s license/ State I.D.” A second subpoena was sent to the

bartender on October 19, 2022, at Angie’s. The second subpoena did not list a time to

appear and, in addition to the forms of identification to be produced, it listed check stubs

from the week of October 15, 2021. Both subpoenas list phone numbers for the Sheriff

to call the prosecutor’s office to obtain the bartender’s home address. The docket

reflects two returns of subpoena on October 21, 2022; both indicated a failure of service

because the bartender was no longer employed at Angie’s.

{¶ 103} When asked by the court if the State had a home address for the

bartender, the prosecutor stated she believed the only known address for her was at

Angie’s. Angie’s address on Watervliet was also the only address for the bartender listed

on the State’s January 9, 2023 written list of witnesses. Wolfe asked the court to dismiss

the charges against him based upon the bartender’s absence, asserting a failure of

{¶ 104} Because there was no evidence that the bartender had been properly

served, she was not required to appear. Wolfe did not argue that the bartender had -39-

actual knowledge of the subpoena. Wolfe could have requested a continuance to locate

the bartender, but he did not do so. See State v. Hand, 2008-Ohio-1870, ¶ 22 (“The trial

court did not err in failing to assist Hand in securing [a witness’s] appearance where

personal service had not been obtained. Hand’s right to compulsory process was not

violated. Although Counsel could have requested a reasonable continuance to obtain

personal service, no such request was made.”) Wolfe’s argument as to this subpoena is

without merit.

January 9, 2023 Subpoenas for Pretrial Conference

{¶ 105} Wolfe issued multiple subpoenas on January 9, 2023, for various

witnesses to appear and produce documents at the final pretrial conference on January

19, 2023. At that conference, “Captain Cook from Green County” appeared in response

to a subpoena. The court stated, “At a final pre-trial we usually go over the progression

of how the trial will occur, on what days it occurs, the time, and any last-minute issues.”

She advised Wolfe that no hearing was being held that day that required anyone’s

testimony.

{¶ 106} The court asked Wolfe why Cook had been subpoenaed for “a case that

involved the City of Dayton.” Wolfe responded that he had issued multiple subpoenas

to obtain records “for the purpose of time limitations and other relevant matters that I’ve

raised in the past motion to discharge, as well as the evidence that I want entered into

the record for the upcoming motion for discharge for the time limitations that I plan to bring

before the court.” The court indicated that it had overruled Wolfe’s motion to dismiss and

there wasn’t going to be a hearing on it; there would only be a trial on the indictment. -40-

After leaving documents with Wolfe, Captain Cook departed, and the court confirmed that

no one else had appeared pursuant to a subpoena.

{¶ 107} The following exchange occurred at the pretrial conference:

WOLFE: Today I’ve subpoenaed more records over here. I’d like to find

out if they showed up at this building for - -

THE COURT: If they were subpoenaed and they showed up today, they

would’ve been directed here.

WOLFE: In this subpoena I’ve subpoenaed all of the records from the

police station. These are some of the requests that I’ve made through

discovery. I’d like to be able - - and I’m still requesting from the Prosecution

these things as well as trying to subpoena. And it includes all the work

histories, disciplinary records. It also includes the original video footage,

inside and out, from Angie’s Tavern. It also includes the original camera

footage and body cam video which should have been made at the interview

with [the bartender].

THE COURT: Let me ask you something. Are you saying that the State

has the additional discovery that they have not provided to you, or are you

trying to get discovery that you think is available?

WOLFE: Yes. Both. . . .

WOLFE: Well, what does the Court normally to do [sic] when somebody

doesn’t respond to a subpoena for records or for showing up at a hearing? -41-

THE COURT: Well, what I can tell you is it would be incumbent upon the

attorney involved to request certain things from the Court if someone

doesn’t comply with subpoenas. So I can’t provide that legal advice to you.

WOLFE: And I am requesting that you - - that the Court would contact

those subpoenaed through the records of - -

THE COURT: Mr. Wolfe, this Court is not going to contact who you have

subpoenaed and ask them to appear.

WOLFE: Are they allowed to just ignore my subpoenas because I’m self-

represented?

THE COURT: I am not going to provide any legal advice to you on that.

WOLFE: But I think I have the power of compulsory, just like a regular

attorney does. And that’s what I’m bringing to the Court’s attention today,

is I have subpoenaed these things and they didn’t appear today to bring

these records.

THE COURT: So if there are motions that you need to have filed, I would

ask you to file them and I’ll rule on them. If there’s another time that you

would like us to meet to go over more of these things, I will do that as well.

I just can’t - - I don’t know how much longer you’re going to be.

WOLFE: So this is a - - presents a - - I’m going to try to reissue those

subpoenas. I’m going to try to work with the standby counsel to get the -42-

things I need. . . .

{¶ 108} Crim.R. 17 provides for subpoenas to be issued for a hearing or a trial, not

a final pretrial conference. Subpoenas for a pretrial are not recognized, and Wolfe

indicated that he would re-issue the subpoenas before trial with the help of standby

counsel. His argument as to these subpoenas is without merit.

January 17, 2023 Subpoenas

{¶ 109} Finally, Wolfe issued multiple subpoenas for the first day of trial on January

30, 2023. He subpoenaed: an attorney from the Greene County Public Defender’s

Office, requesting video of a probation revocation hearing from a 2021 case; the

Montgomery County Clerk of Court, requesting audio and video of Wolfe’s court

proceedings, including his motion to suppress hearing; a Montgomery County Jail

employee, requesting Wolfe’s medical records; the “Jail Administrator” (two subpoenas),

requesting all mail records for Wolfe during his incarceration; the Dayton Municipal Court

Clerk of Courts, requesting audio and video recordings of his arraignment and preliminary

hearing; and Officer Peters of the Xenia Police Department, requesting video of Wolfe’s

arrest and “original police reports, original police telephone calls related to arrest.” Wolfe

also subpoenaed Det. Veregee of the Dayton Police Department, requesting his

“employment ID, all original detective work product, police reports. Names of all officers

responding to alleged crime scenes on 11/15/2023, all original police reports (paper

format).” Finally, he subpoenaed the Dayton Police “records supervisor,” requesting the

“original video/audio footage from Angie’s Tavern on 11/15/2021.”

{¶ 110} A motion to quash was filed by the Dayton Police Department on January -43-

25, 2023. The court scheduled an immediate hearing on the motion to quash for January

26, 2023, and it subsequently granted the motion. Regarding the request issued to the

records supervisor, the court found that video from Angie’s had been provided to Wolfe

in the manner “provided and allowed” by Crim.R. 16, i.e., Crim.R. 16 did not entitle Wolfe

to original surveillance videos. As to Det. Veregee, the court found that everything

requested had been provided to. Wolfe as part of the discovery in the case, pursuant to

Crim.R. 16, “as verified by the exhibits that were admitted by the State for this hearing,

and as well as verified by standby counsel.”

{¶ 111} The court reviewed the several subpoenas issued by Wolfe and discussed

under this assignment of error; it found that they constituted a “fishing expedition,” sought

material irrelevant to his guilt or innocence, or that there had been no failure to comply

before the first day of trial. We agree with the trial court that video of a prior revocation

hearing in another matter, audio and video of the proceedings herein, Wolfe’s medical

and mail records from the jail, and video of Wolfe’s arrest were not relevant to the events

underlying the charges in this case or Wolfe’s guilt or innocence.

{¶ 112} Wolfe’s thirteenth assignment of error is overruled.

Sufficiency of the Evidence

{¶ 113} Wolfe’s fifteenth assignment of error states:

TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S MOTION

FOR ACQUITTAL UNDER CRIM.R. 29. THE STATE VIOLATED DUE

PROCESS OF LAW WHEN THE STATE FAILED TO PRESENT

SUFFICIENT EVIDENCE TO ESTABLISH BEYOND A REASONABLE -44-

DOUBT THE ELEMENTS NECESSARY TO SUPPORT AND SUSTAIN A

CONVICTION.

{¶ 114} Wolfe again asserts that D.C. was “the only person who could establish

the elements of the offense of kidnapping” and theft of the vehicle. As we discussed

above, we disagree.

{¶ 115} “Crim.R. 29(A) states that a court shall order an entry of judgment of

acquittal if the evidence is insufficient to sustain a conviction for the charged offense.”

State v. White, 2014-Ohio-1446, ¶ 9 (2d Dist.). “ ‘Reviewing the denial of a Crim.R. 29

motion therefore requires an appellate court to use the same standard as is used to review

a sufficiency of the evidence claim.’ ” Id., quoting State v. Witcher, 2007-Ohio-3960, ¶ 20

(6th Dist.).

{¶ 116} In reviewing a challenge to the sufficiency of evidence, we determine

whether the evidence, if believed, would convince the average mind of the defendant's

guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, (1991), paragraph

two of the syllabus. “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.” Id., citing Jackson v. Virginia,

443 U.S. 307 (1979). Our review is not to determine “whether the state's evidence is to

be believed, but whether, if believed, the evidence against a defendant would support a

conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390 (1997) (Cook, J., concurring).

{¶ 117} The elements of kidnapping and grand theft (auto) are set forth under

Wolfe’s third assignment of error. If believed, the evidence against Wolfe supported his -45-

conviction. S.C. testified that D.C. was in the backseat of her vehicle when it was stolen

from DashMart. D.C. was found almost two miles away at Carmel’s after Wolfe ordered

him out of the vehicle. When Wolfe was arrested, he had the keys to S.C.’s stolen

vehicle in his possession, and S.C.’s car was found nearby. Although Wolfe maintains

that the kidnapper was black or sounded black (allegedly based on a statement from

D.C.), the evidence did not support such a conclusion. Det. Veregee testified that,

viewing the video, it was clear that the person who got in the car was not black. The

bartender at Angie’s identified Wolfe in a folder system as the person who did not pay his

tab just before the theft of S.C.’s vehicle. The jury viewed video of the theft of the vehicle.

{¶ 118} Viewing the evidence in a light most favorable to the State, a rational juror

could have found the essential elements of kidnapping and grand theft (auto) proven

beyond a reasonable doubt. Wolfe’s argument that D.C. was the only person who could

establish the elements of these offenses is without merit.

{¶ 119} Wolfe’s fifteenth assignment of error is overruled.

Constitutionality of Reagan Tokes Act

{¶ 120} Wolfe’s sixteenth assignment of states:

THE TRIAL COURT VIOLATED THE APPELLANT’S

CONSTITUTION[AL] RIGHTS WHEN THE COURT SENTENCED THE

APPELLANT TO A SENTENCE THAT ALLOWS THE PRISON TO

INCREASE THE PRISON TERM.

{¶ 121} Under this assignment of error, Wolfe challenges the constitutionality of

the Reagan Tokes Act. However, we have consistently held that the Reagan Tokes Act, -46-

R.C. 2929.144, which governs the determination of an indefinite prison term for certain

offenses, does not violate due process, the right to trial by jury, or the separation of

powers doctrine. See State v. Glaze, 2022-Ohio-4549, ¶ 9 (2d Dist.) (citing 12 cases

examining and rejecting such arguments). Wolfe’s sixteenth assignment of error is

Sentencing

{¶ 122} Wolfe’s seventeenth assignment of error states:

THE TRIAL COURT ERRORED AT SENTENCING.

{¶ 123} Wolfe asserts that the trial court erred in sentencing him to “the maximum

minimum sentence and the maximum longest term for a single felony or combination of

felonies rising out of a single transaction or event.” He argues that the trial court failed

to consider relevant factors pursuant to R.C. 2929.12(C), namely that the “crime alleged

was the least serious form of offense, and conduct was alleged that is less serious than

the conduct which usually constitutes the offense of kidnapping.” Wolfe points out that

he did not have a gun or act violently, make threats, cause or threaten physical harm, or

have any physical contact with the victim. He also asserts that the court erred in

considering his adjudications as a juvenile.

{¶ 124} “When reviewing felony sentences, a court of appeals must apply the

standard of review set forth in R.C. 2953.08(G).” State v. Williams, 2022-Ohio-2897, ¶ 18

(2d Dist.), citing State v. Farra, 2022-Ohio-1421, ¶ 73 (2d Dist.). Under that statute, an

appellate court may increase, reduce, or modify a sentence, or vacate it altogether and

remand for resentencing, “only if it ‘clearly and convincingly’ finds either (1) that the record -47-

does not support certain specified findings or (2) that the sentence imposed is contrary to

law.” State v. Worthen, 2021-Ohio-2788, ¶ 13 (2d Dist.).

{¶ 125} We may not independently “weigh the evidence in the record and

substitute [our] judgment for that of the trial court concerning the sentence that best

reflects compliance with R.C. 2929.11 and 2929.12.” State v. Bartley, 2023-Ohio-2325,

¶ 9 (2d Dist.), quoting State v. Jones, 2020-Ohio-6729, ¶ 42. “The inquiry is simply

whether the sentence is contrary to law.” Id. “A sentence is contrary to law when it

falls outside the statutory range for the offense or if the sentencing court does not consider

R.C. 2929.11 and 2929.12.” Id., citing State v. Dorsey, 2021-Ohio-76, ¶ 18 (2d Dist.).

Finally, R.C. 2929.12(D)(2) mandates that juvenile adjudications be factored into the

recidivism risk.

{¶ 126} Wolfe’s sentence for kidnapping -- an indefinite sentence of 8 to 12 years

for a felony of the second degree -- was within the statutory range and not contrary to

law. R.C. 2929.14(A)(2)(a). His 18-month sentence for grand theft, a felony of the

fourth degree, was also within the statutory range and not contrary to law. R.C.

2929.14(A)(4). At sentencing, the trial court indicated that it had considered the relevant

sentencing factors in R.C 2929.11 and 2929.12 in imposing sentence.

{¶ 127} Wolfe’s seventeenth assignment of error lacks merit and is overruled.

Speedy Trial

{¶ 128} Wolfe’s eighteenth assignment of error states:

SPEEDY TRIAL. -48-

{¶ 129} “Speedy-trial provisions are mandatory, and, pursuant to R.C. 2945.73(B),

a person not brought to trial within the relevant time constraints ‘shall be discharged,’ and

further criminal proceedings based on the same conduct are barred.” State v. Sanchez,

2006-Ohio-4478, ¶ 7, quoting R.C. 2945.72(D). In Ohio, the prosecution is required to

bring a felony offender to trial within 270 days of arrest. R.C. 2945.71(C)(2). Each day

during which the accused is held in jail in lieu of bail on the pending charge must be

counted as three days. R.C. 2945.71(E). “This ‘triple count’ provision applies only

when the defendant is being held in jail solely on the pending charge.” Sanchez, citing

State v. MacDonald, 48 Ohio St.2d 66 (1976), paragraph one of the syllabus (construing

former R.C. 2945.71(D), now (E)).

{¶ 130} R.C. 2945.72(C) states that the time within which the accused must be

brought to trial may be extended by “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 the accused's request as required by law.

R.C. 2945.72(E) and (H) state that the time within which an accused must be brought to

trial may be 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” or by “[t]he

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.”

{¶ 131} The record reflects the following: Wolfe was indicted on February 15, 2022.

A warrant for removal from the Greene County Jail, where Wolfe was being held on a

separate matter, was issued on February 16, 2022. Wolfe was arraigned on March 3, -49-

2022, and the court entered a plea of not guilty on his behalf. Counsel was also

appointed for Wolfe.

{¶ 132} A warrant for removal from the Green County Jail was issued on March 7,

2022, for a scheduling conference on March 17, 2022. Wolfe’s motion for a continuance

from March 17, 2022, to April 7, 2022, was granted. On March 30, 2022, Wolfe’s counsel

filed a motion to withdraw as counsel. On April 11, 2022, new counsel was appointed to

represent Wolfe. Several requests for continuances were subsequently granted at

defense counsel’s request, which continued the matter from April 7 to May 12, 2022.

{¶ 133} On May 12, 2022, the court set a motion to suppress hearing for June 24,

2022. (Wolfe’s motion to suppress was filed on May 20, 2022.) On June 10, 2022,

Wolfe filed a motion for new counsel. The trial court granted this motion, and on June

24, 2022, it appointed a third attorney for Wolfe. On June 29, 2022, Wolfe filed a motion

for relief from prejudicial joinder and a motion to dismiss the violent offender specification

attendant to the kidnapping count. On August 9, 2022, the court overruled both motions.

On August 12, 2022, Wolfe’s attorney for filed a motion to withdraw; the trial court granted

this motion and appointed a fourth attorney on August 17, 2022. The suppression

hearing previously scheduled for June 24, 2022, was rescheduled to October 6, 2022.

On September 12, 2022, Wolfe filed a motion to release his attorney and to represent

himself; he signed a waiver of counsel on September 27, 2022. The suppression hearing

was rescheduled to October 27, 2022.

{¶ 134} Wolfe filed 28 additional motions between October 3, 2022, and February

3, 2023. As the trial court noted in its decision of December 28, 2022, Wolfe’s statutory -50-

speedy trial time was extended each time he requested a continuance and when he filed

various motions. Pursuant to R.C.2945.72 (E), Wolfe’s speedy trial time was tolled while

his motions were pending. His speedy trial time was also tolled pursuant to R.C.

2945.72(C) for the time periods during which he did not have counsel at his request or

sought new counsel, when the court was required to appoint new counsel to represent

him. Because Wolfe was held in Greene County on an unrelated case until May 8, 2022,

the triple count provision did not apply from his arraignment on March 2, 2022 through

May 8, 2022. Fifteen days of speedy trial time passed between March 2 and March 17,

2022; then, Wolfe requested a series of continuances which tolled the time through May

12, 2022. The triple count provision applied to eight days that passed between May 12

and May 20, 2022, for a total of 24 days. Wolfe then filed multiple motions. On

December 28, 2022, the court overruled several motions to dismiss filed by Wolfe.

{¶ 135} In sum, 15 days counted against the State from March 2, 2022, to March

17, 2022, when Wolfe filed the first of a series of continuances. The time was tolled from

March 17, 2022, through May 12, 2022. Eight days then elapsed between May 12 and

May 20, 2022, at triple count, for 24 days. Time was again tolled on May 20, 2022, when

Wolfe filed a motion to suppress. The court issued rulings on multiple motions through

December 28, 2022. Wolfe had filed a request for jury instructions on October 24, 2022;

the State filed proposed jury instructions on January 24, 2023, to which Wolfe objected,

and the issue was addressed at trial. The trial was held in late January and early

February. Thus, time was tolled from May 20, 2022, until trial commenced. Because of

Wolfe’s numerous motions and changes of counsel, only 39 days counted against the -51-

State before trial commenced. As such, Wolfe’s right to a speedy trial was not violated.

{¶ 136} The eighteenth assignment of error is overruled.

Right to Hire Experts and Private Investigator

{¶ 137} Finally, Wolfe’s twentieth assignment of error states:

THE APPELLANT’S RIGHTS WERE VIOLATED TO CALL

WITNESSES WHEN THE TRIAL COURT REFUSED TO PROVIDE A

PLATFORM FOR THE APPELLANT TO OBTAIN AN EXPERT WITNESS,

PRIVATE INVESTIGATOR AND THE STANDBY COUNSEL REFUSED

TO ASSIST.

{¶ 138} Wolfe asserts that a “self-represented defendant retains all other

substantial rights, and court must ensure they are not forfeited because the defendant

chooses to represent himself.” He argues that his convictions should be reversed for

violations of due process, his right to call witnesses and present evidence, and his right

to a fair trial.

{¶ 139} As noted above, as a pro se litigant, Wolfe is held to the same standard

as litigants who are represented by counsel. The record reflects that on November 1,

2022, the trial court granted Wolfe’s motion for a private investigator to assist in trial

preparation, and on December 19, 2022, the court granted Wolfe’s motion for an expert

witness in the field of audio/video technology. Wolfe acknowledges that the court -52-

granted his motions for an expert witness and an investigator. The court approved the

sum of $1,500 for each purpose. It was up to Wolfe whether or not to avail himself of the

sums provided for his assistance; there is no evidence that the court interfered with his

ability to do so. Wolfe’s twentieth assignment of error is overruled.

Conclusion

{¶ 140} Having addressed all of Wolfe’s assignments of error, we will reverse the

judgment of the trial court only as to sentencing; the matter will be remanded for

resentencing pursuant to the Reagan Tokes Act, for proper imposition of the Tier 1 sex

offense/child victim offender designation, and for proper consideration of the issue of

restitution. In all other respects, the judgment of the trial court is affirmed.

EPLEY, P.J. and LEWIS, J., concur.