Opinion
Court of Appeals No. L-19-1080
01-29-2021
State of Ohio Appellee v. Nathaniel Boles Appellant
Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee. Laurel A. Kendall, for appellant.
Trial Court No. CR0201702166 DECISION AND JUDGMENT Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee. Laurel A. Kendall, for appellant. OSOWIK, J.
Introduction
{¶ 1} Following a bench trial, the defendant-appellant, Nathaniel Boles, was convicted of trafficking and possession of heroin and crack cocaine by the Lucas County Court of Common Pleas. On appeal, Boles raises multiple trial-related errors and also argues that the trial court erred in denying his pretrial motions to suppress. Finding no error, we affirm.
Facts and Procedural History
{¶ 2} The following evidence was offered at trial. Toledo Police Detective Ken Heban works in the vice narcotics department. In 2016, Detective Heban learned from a confidential informant that Boles was "involved in a narcotics trafficking operation[] in the City of Toledo." The informant was described as a person who "consistently provided reliable and accurate information." So, Heban began an investigation of Boles and three of Boles' "suppliers." In August of 2016, Detective Heban observed Boles "make a narcotics transaction" on a city street corner.
{¶ 3} On September 5, 2016, Detective Heban learned that Boles was "going to be making a narcotics transaction in the afternoon." Detective Heban "conducted a police records check" and learned that Boles had eight arrest warrants issued by the Toledo Municipal Court, which he confirmed were all "active." Detective Heban was already familiar with the vehicle that Boles "was utilizing," a rented Chrysler Pacifica, and he "prepared to go out and look for the vehicle" and apprehend Boles. Detective Heban requested assistance from his supervisor, Lieutenant Robert Furr and two other detectives. Because vice officers are dressed in "plain-clothes" and drive unmarked vehicles, Detective Heban also requested assistance from the SWAT unit which uses "limited marked vehicles [that are equipped with] lights and sirens" and officers who are "in full uniform." Detective Heban's purpose in assembling his team that day was to serve Boles with the warrants. But, he agreed that if Boles was also found to be holding drugs, that would be "icing on the cake."
{¶ 4} Detective Heban drove around searching for Boles' vehicle, first at the location where Boles was known to live and next to the home of his girlfriend's sister, located at 2212 Elm Street in Toledo. There, he found the Pacifica "parked in the rear yard behind the residence." Detective Heban parked nearby, serving as "the eye" of the surveillance team. The other police vehicles in the area "put a box around the suspect vehicle." A box allows the police to work together so that if the suspect "move[s], other units can pick up * * * the car [and avoid] being tailed." After about thirty minutes, at 3:30 p.m., Detective Heban saw Boles and a woman exit the home and get into the Pacifica, with Boles in the passenger seat and the woman driving. As the vehicle headed south, Detective Heban "loop[ed] around" in his car, "crossed" paths with the Pacifica, and then "got behind" it. Heban was able to see inside the vehicle and confirm that Boles was, in fact, the passenger. He radioed the other vice and SWAT officers in the area and "started calling out which direction[]" the vehicle was headed. While trailing the vehicle, Detective Heban observed that the driver of the Pacifica "failed to use a turn signal" and he "put [that information] over the radio channel."
{¶ 5} Sergeant Russell was driving a SWAT vehicle. He approached Detective Heban's vehicle from behind, "went around" it and then "activated his lights to make the stop of the vehicle." A number of other Toledo Police officers arrived and converged on the vehicle. Boles "step[ped] out" of the car, was placed in handcuffs, "patted down * * * over his clothes," and put in the back of the SWAT vehicle. Boles was then "removed" from the police vehicle, and a "second" search of his person was conducted. According to Detective Heban, a second search was conducted because the police "had specific information about where [Boles] was keeping" the drugs. During the second search, "a plastic bag fell out of [Boles'] pant[] leg." Within that bag were 19 individually packaged bags, each containing "grey chunks of powder" and two bags containing "off-white chunky material." Laboratory testing later confirmed that the substances were 6.28 grams of heroin and .38 grams of cocaine, respectively. Police also recovered $600, mostly in twenty dollar bills, in Boles' possession and six grams of marijuana.
{¶ 6} Boles was taken into custody and transported to the police station where Lieutenant Furr read him his Miranda rights. Detective Heban and Boles then had "a short conversation" about "the potential for [Boles to] becom[e] a confidential informant." Boles "expressed willingness" to work as an informant. When asked about "the contraband that was discovered," Boles requested an attorney, and questioning of him stopped. Detective Heban advised Boles that—for the time being—he would not be charged with any drug offenses but would instead be "booked on the warrants." Boles was made aware that police were "going to hold this drug charge over [his] head [and] as long as [he] cooperate[d], this will go away." According to Detective Heban, the police "booked" Boles that day to protect him. Had Boles been immediately released, "people who are involved in narcotics [would have assumed] 'oh, he probably talked.'" As a measure of "good faith," Boles was allowed to keep the $600.
{¶ 7} After his release, Boles contacted Detective Heban, and a meeting was set up behind the Home Depot on Alexis Road in Toledo. Lieutenant Furr also attended. During their meeting, the police and Boles discussed "ongoing narcotics investigations," and Boles provided "very basic blanket information," that the police "already had knowledge of." For example, Boles identified three individuals who were trafficking in narcotics, but he said that he owed one of them $10,000 for an outstanding drug debt and therefore would not be able to contact him (on behalf of the police). Detective Heban never considered Boles a confidential informant because, after their meeting, Boles "failed to contact [Heban] [and] stopped responding" to Detective Heban's text messages. Detective Heban's last test message to Boles was in May of 2017. When Boles did not respond, the case was presented to the grand jury. On July 10, 2017, Boles was indicted on four counts: trafficking in heroin, in violation of R.C. 2925.03(A)(2) and (C)(6)(d), a felony of the second degree (Count 1); possession of heroin, in violation of R.C. 2925.11(A) and (C)(6)(c), a felony of the third degree (Count 2); trafficking in cocaine, in violation of R.C. 2925.03(A)(2) and (C)(4)(b), a felony in the fourth degree (Count 3); and possession of cocaine, in violation of R.C. 2925.11(A) and (C)(4)(a), a felony of the fifth degree (Count 4).
{¶ 8} At trial, the defense presented three witnesses. First to testify was SWAT Officer Ben Tsou. Tsou and his partner were part of the "loose perimeter" surrounding Boles' vehicle and arrived at the scene "within a minute" after the stop "to assist" the operation. Tsou's commanding officer, Sergeant Russell, directed him to issue a citation to the driver for a "moving violation," that was later dismissed by the Toledo Municipal Court.
{¶ 9} Officer Tsou's SWAT vehicle was equipped with a dash camera. Because he did not activate its emergency lights, however, the dash camera did not activate automatically. Officer Tsou testified that it was standard practice not to activate his lights when he is "just pulling up to assist another unit [because] the more lights you activate on cars, the more attention you draw. * * * [I]t was in the interest of our safety and the safety of the detectives out there to * * * not draw as much attention [to this]." Likewise, while Officer Tsou could have activated the dash camera manually, he did not do so because he was merely assisting as a back-up that day. Nonetheless, before trial and at the request of the prosecutor, Tsou verified that no "dashcam footage from [his] car" existed for the event.
{¶ 10} Boles also called David Cogan to testify. Cogan supervises the "crime lab" for the city of Toledo. Cogan has performed "thousands" of drug analyses in his 23-year career and is an expert in forensics. Cogan oversaw Chad Douglas who prepared the drug analysis reports in this case and who testified on behalf of the state as to the contents and weights of the substances that were recovered on Boles. Cogan reviewed and initialed Douglas's report. Based upon Cogan's review of that report, nothing was "amiss" or "caught [his] attention" as needing to be corrected.
{¶ 11} Finally, Boles testified in his own defense. Boles confirmed that, on September 5, 2016, he was at the home of his girlfriend's sister, 2212 Elm Street, for a family barbeque. In preparation for the barbeque, he and his girlfriend left to buy drinks in a Chrysler Pacifica that belonged to his girlfriend's grandmother. Along the way, they were stopped by police.
{¶ 12} Boles claimed that he was searched one time only, which was after he was removed from the police car and that "when they searched [him], they didn't find nothing." He specifically denied that he possessed any heroin or crack cocaine. Boles did admit to possessing a "little bag of marijuana" which police found in a pant pocket. Boles denied that any conversation ever took place about him working as a confidential informant, either at the police station or near Home Depot. Finally, Boles claimed that the money in his possession on the day of his arrest—about $400—was from selling a Sony Playstation.
{¶ 13} At the conclusion of the two-day trial, beginning on April 1, 2019, the court found Boles guilty and convicted him on all four counts, i.e., trafficking in and possession of heroin (Counts 1 and 2) and trafficking in and possession of cocaine (Counts 3 and 4). The trial court found that Counts 1 and 2 and Counts 3 and 4 were allied offenses of similar import that merged for purposes of sentencing, and the state elected to have Boles sentenced as to the trafficking offenses, i.e., Counts 1 and 3. By judgment entry dated April 3, 2019, the trial court sentenced Boles to serve four years in prison as to Count 1 and 17 months as to Count 3, to be served concurrently with one another.
{¶ 14} On appeal, Boles raises the following assignments of error:
Assignment of Error One: The trial court erred in denying Mr. Boles' motions so suppress.
Assignment of Error Two: The trafficking convictions are unsupported by sufficient evidence and are against the manifest weight of the evidence.
Assignment of Error Three: The trial court erred in denying Mr. Boles' motion to dismiss for a speedy trial violation.
Assignment of Error Four: The school specification was not separately proven beyond a reasonable doubt.
Assignment of Error Five: The trial court erred in finding appellant unable to pay costs and then imposing one-half of the costs to appellant.
The trial court did not err in denying Boles' motions to suppress.
{¶ 15} Boles was represented by nine different attorneys throughout the trial court proceedings, and during that time, many pretrial motions were filed, including two motions to suppress.
{¶ 16} We begin with the latter motion, filed on May 18, 2018, in which Boles argued that the police lacked reasonable and articulable suspicions "to ask Mr. Boles to step from the vehicle and to search him," in violation of Terry v. Ohio, 392. U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Following a hearing, the trial court denied the motion on December 18, 2018.
{¶ 17} The review of a motion to suppress is a mixed question of law and fact. State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.3d 638, ¶ 32, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. In evaluating the motion to suppress, the trial court acts as the finder of fact because it is in the best position to resolve factual questions and to evaluate the credibility of witnesses. Burnside at ¶ 8. "An appellate court independently reviews a challenged suppression ruling to determine whether, given the established facts, the ruling meets the appropriate legal standard. No deference is afforded the trial court's conclusions of law." State v. Barnhart, 6th Dist. Huron No. H-10-005, 2011-Ohio-2693, ¶ 11, citing Burnside at ¶ 8 and State v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994).
{¶ 18} "The Fourth Amendment to the United States Constitution and the Ohio Constitution, Article I, Section 14, prohibit unreasonable searches and seizures." State v. Emerson, 134 Ohio St.3d 191, 2012-Ohio-5047, 981 N.E.2d 787, ¶ 15. This constitutional guarantee is protected by the exclusionary rule, which mandates the exclusion of the evidence obtained from the unreasonable search and seizure at trial. Id. The "investigative stop" exception to the Fourth Amendment warrant requirement allows a police officer to temporarily detain a person for the limited purpose of investigating suspected criminal behavior. State v. Andrews, 57 Ohio St.3d 86, 87, 565 N.E.2d 1271 (1991). "While an investigative stop constitutes a seizure, it does not violate the Fourth Amendment as long as the officer has a reasonable suspicion, based upon specific and articulable facts, that criminal activity 'may be afoot' (i.e., that a person has committed or is about to commit a crime.)." State v. Strong, 4th Dist. Ross No. 18CA3663, 2019-Ohio-2888, ¶ 18, quoting Terry at 30. "The propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances." State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980), paragraph one of the syllabus.
{¶ 19} At the suppression hearing in this case, four law enforcement officers testified: Detective Heban; SWAT Officer Tsou (who issued the traffic citation to the driver); SWAT Sergeant Russell (who initiated the traffic stop); and Lieutenant Furr (who Mirandized Boles and accompanied Detective Heban to Home Depot). In finding that the police conducted a "lawful search incident to [Boles'] arrest," the trial court made the following findings of fact,
Defendant was known to Toledo Police[.] [T]hey were observing his movements prior to his September 5, 2016 arrest, and they verified prior to Defendant's arrest on that date that he had outstanding warrants. Upon observing Defendant as a passenger in the relevant vehicle, they proceeded to pull over the vehicle with the intent of arresting Defendant on such arrest.
{¶ 20} On appeal, Boles does not challenge the propriety of the warrants or whether the police, specifically Detective Heban, were aware of the warrants before the vehicle Boles was driving in was pulled over. Boles concedes that the "[p]olice may stop a person to serve misdemeanor warrants" and that the investigative stop, as to him, was lawful. (Brief at 8). Indeed, "an outstanding arrest warrant operates to deprive its subject of the reasonable expectation of privacy the Fourth Amendment protects [and] the exclusionary rule does not apply to a search and seizure of the subject that would otherwise be illegal because of a Terry violation." State v. Walker-Stokes, 180 Ohio App.3d 36, 2008-Ohio-6552, 903 N.E.2d 1277, ¶ 40 (2d Dist.) (Finding that the trial court erred when it granted defendant's motion to suppress evidence obtained in a search incident to defendant's arrest on a valid, outstanding warrant); see also State v. Hoffman, 6th Dist. Lucas No. L-12-1262, 2013-Ohio-1082.
{¶ 21} Instead, Boles "wishes to argue" that police "should not be able to detain a driver in order to serve a misdemeanor warrant on a passenger." Boles admits that he can find no legal support for his position, much less demonstrate how he has standing to challenge the Fourth Amendment rights of the driver. And, even if he could, we find no support for Boles' claim that the "alleged basis for the stop—failing to stop at a stop sign—was clearly pretextual." The transcript from the suppression hearing supports the trial court's conclusion that the basis for the stop was to "take the suspect into custody on his warrants." (Tr. at 41). Under cross-examination at trial, Detective Heban explained why he radioed the other officers that the driver had committed a traffic violation, if, in fact, "[t]he car wasn't stopped for a traffic violation." Detective Heban testified that he did so out of "force of habit," because "typically * * * we are specifically looking for traffic violations. So, * * * if I see a traffic violation, I'm going to notify the SWAT officers of that violation." The testimony—at the suppression hearing and at trial—bear that out because, by the time Heban made that remark over the radio, the effort to serve the warrants on Boles was already well underway. That is, Heban had conducted surveillance for approximately 30 minutes while other officers who were nearby awaited instructions from him. When Boles was seen leaving, Detective Heban relayed the vehicle's location and movements to the officers. Heban "crossed paths" with the vehicle, confirmed that it was Boles in the passenger seat, began to trail it and waited for the SWAT vehicle to catch up and effectuate the stop. In sum, we see no evidence that the police used the alleged moving violation by the driver as a pretext, and we agree with the trial court's conclusion that it is "immaterial" whether or not the driver actually committed a traffic violation.
{¶ 22} Moreover, we conclude, as a matter of law, that the information Heban received about eight active warrants gave him a reasonable, articulable suspicion to believe that Boles had committed criminal offenses that entitled the police to "stop," "seize," and "detain" him to pursue the warrant issue further. Strong, 4th Dist. Ross No. 18CA3663, 2019-Ohio-2888, at ¶ 18. Accordingly, we find that the investigatory stop of Boles was lawful, and the trial court did not err in denying Boles' May 18, 2018 motion to suppress.
{¶ 23} In the first motion to suppress, filed on March 29, 2018, Boles argued that "a warrantless search of the vehicle resulted in alleged drugs being recovered." At the suppression hearing, the state argued that Boles—as a passenger in the vehicle with no possessory interest in it—lacked standing to assert a Fourth Amendment challenge "to the [alleged] illegal search of the vehicle." See, e.g., State v. Conner, 6th Dist. Lucas No. L-09-1187, 2010-Ohio-4163, ¶ 11. And, Boles conceded at that time that he did not have standing to challenge any search of the vehicle that may have occurred. (July 2, 2018 Tr. at 12). Nonetheless, on appeal, Boles urges this court to "review the arguments raised in the suppression motions." But, his brief lacks any discussion or argument regarding any search of the vehicle that may have taken place. For the record, we note that the only evidence of narcotics in this case was found on Boles, during a second search of his person, while he stood outside the police cruiser. We decline to address the issue further. Appellate courts "are not obligated to search the record or formulate legal arguments on behalf of the parties." (Citations omitted). Risner v. Ohio Dep't of Nat. Res., Ohio Div. of Wildlife, 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 28. Indeed, under the Rules of Appellate Procedure, Boles, as the appellant, must establish each assigned error through an argument supported by citations to legal authorities and facts in the record. App.R. 16(A)(7). If an appellant fails to advance such an argument, a court of appeals may disregard the assignment of error. App.R. 12(A)(2).
{¶ 24} For these reasons, Boles' first assignment of error is found not well-taken.
The sufficiency and weight of the evidence support the drug trafficking convictions.
{¶ 25} In his second assignment of error, Boles alleges that the state failed to present legally sufficient evidence with respect to his drug trafficking convictions. He does not challenge the sufficiency of the evidence as to his possession convictions.
{¶ 26} Whether there is sufficient evidence to support a conviction is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In reviewing a challenge to the sufficiency of evidence, "[t]he 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." (Internal citations omitted.) State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). In making that determination, the appellate court will not weigh the evidence or assess the credibility of the witnesses. State v. Walker, 55 Ohio St.2d 208, 212, 378 N.E.2d 1049 (1978).
{¶ 27} Both trafficking convictions required the state to establish a violation of R.C. 2925.03(A)(2) which provides, in relevant part,
No person shall knowingly * * * [p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or a controlled substance analog, when the offender knows or has reasonable cause to believe that the controlled substance or a controlled substance analog is intended for sale or resale by the offender or another person.
{¶ 28} On appeal, Boles alleges that, aside from a hearsay statement from a confidential informant who did not testify, the state presented no direct evidence that he transported narcotics with knowledge that the drugs were intended for sale. Boles argues that merely "possessing or carrying drugs [that] are individually packaged," standing alone, is insufficient to establish an "intent to sell."
{¶ 29} First, it is well-established in Ohio that "[c]ircumstantial evidence and direct evidence inherently possess the same probative value." State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph one of the syllabus. While the state may not have offered direct evidence that Boles transported the narcotics with the intention that they be sold, either by him or by someone else, the state did present circumstantial evidence to that effect. Moreover, and contrary to Boles' legal argument, "[a] reasonable inference that the offender intended to sell or distribute drugs exists where an officer testifies that the drugs were packaged as if products were to be sold." State v. Kallenberger, 6th Dist. Lucas No. L-17-1156, 2018-Ohio-2212, ¶ 26, citing State v. Lindow, 9th Dist. Summit No. 27417, 2016-Ohio-913, ¶ 26 (Evidence consisting of 166 grams of cannabis that were split into "numerous portable containers" and officer's testimony that such an amount was not for "personal use" was sufficient to establish intent to sell).
{¶ 30} Here, the state presented the testimony of Detective Heban who testified that the presence of "19 little bags" indicated that the drugs were "packaged for sale." He added that "street level dealers" typically package narcotics in $20 increments for an easy sale, and in his opinion, the individual units of drugs found in Boles' possession were each worth $20 to $50, which could explain why Boles was also found with so many $20 bills. Detective Heban also opined that the large amount of drugs found on Boles was not indicative of "someone who is using" but rather "someone [who] has the intention of selling them or distributing them." In Heban's experience, a person "who is using heroin will never have that amount * * * [b]ecause they would use it too quickly." In other words, the state relied not just on how the drugs were packaged, but also the volume of drugs, the "large amount of US currency," and the denomination of that currency to support its case that Boles was engaged in "narcotics trafficking."
{¶ 31} Other evidence came from Boles himself. While testifying in his own defense, the prosecutor asked Boles about a conversation with his girlfriend that he had while he was in jail on May 31, 2018, after his bond was revoked. Reading from the transcript of that jailhouse phone call, the prosecutor asked Boles, "[d]o you remember [your girlfriend] saying to you * * * 'I told him I ain't one of those slouch bitches. I'm taking over the operation, mother fucker, and the mother fuckers going to have to catch me. * * * My nigger locked up, I'm gonna say hey, baby girl, you look like you need a little hit over there. How much money you got.'" Boles did not dispute the conversation. Instead, he suggested that she only said those things "because she knew [the prosecutor] was listening" but then admitted that the comments could be "interpret[ed] the way you want to interpret [them]." Indeed, the trial court, acting as the trier of fact, likely concluded that Boles ran a narcotics "operation" which served as circumstantial evidence that the drugs found in Boles' possession on September 5, 2016 were intended for sale. We find that the state presented legally sufficient evidence to support Boles' convictions for trafficking in heroin and cocaine.
{¶ 32} Lastly, while Boles' second assignment of error appears to challenge the manifest weight of the evidence, his brief contains no argument in support of such a claim, and therefore, we will not address it. App.R. 12(A)(2).
{¶ 33} For all of these reasons, Boles' second assignment of error is not well-taken.
Boles' right to speedy trial was not violated.
{¶ 34} In his third assignment of error, Boles "requests * * * review" of the trial court's denial of his motion to dismiss the indictment for violation of his statutory right to a speedy trial. But, he concedes that the motion—that he filed while acting pro se—was, in the opinion of his subsequently appointed trial counsel, "frivolous." (Appellant's Brief at 12).
{¶ 35} The right to a speedy trial is guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 10, of the Ohio Constitution. State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989). The Ohio legislature adopted the provisions of R.C. 2945.71-.73 to implement these constitutional guarantees. Id. Under the statutory scheme, the state is required to bring a defendant charged with a felony to trial within 270 days after his arrest. R.C. 2945.71(C)(2). If the defendant makes a prima facie showing that his speedy-trial time has elapsed, the burden shifts to the state to demonstrate that the defendant was timely brought to trial. State v. Taylor, 6th Dist. Lucas No. L-98-1375, 2001 WL 1198648, 2-3 (Oct. 5, 2001). If the state fails to do so, the trial court is required to dismiss the charges against the defendant. R.C. 2945.73(B).
{¶ 36} Here, although Boles was indicted on July 10, 2017, the speedy-trial time did not begin to run until he was served with the indictment, which was September 30, 2017. State v. Dillon, 10th Dist. Franklin No. 05AP-679, 2006-Ohio-3312, ¶ 33. Boles was brought to trial on April 1, 2019. Between the service of the indictment and the commencement of trial, 548 days elapsed. The state concedes that, because this was more than the 270-day limit in R.C. 2945.71(C)(2), there is a prima facie showing that Boles' speedy-trial time elapsed before trial. Therefore, the burden shifts to the state to show that Boles was timely brought to trial.
{¶ 37} The state argues that Boles' case was subject to numerous tolling events that were extended for substantial periods of time, bringing his trial date well within the statutory limit. We agree.
a. Applicable Law
{¶ 38} At its most basic, a speedy-trial calculation requires us to "'simply count the number of days passed, while determining to which party the time is chargeable, as directed in R.C. 2945.71 and 2945.72.'" State v. Vrapi, 10th Dist. Franklin No. 11AP-700, 2012-Ohio-1018, ¶ 6, quoting In re F.S., 10th Dist. Franklin No. 11AP-244, 2011-Ohio-6135, ¶ 7.
{¶ 39} The reasons for charging days to the defendant (i.e., tolling speedy-trial time) are outlined in R.C. 2945.72. The exceptions in the statute are the only reasons that speedy-trial time can be extended. Id. ("The time within which an accused must be brought to trial * * * may be extended only by the following * * *.") (Emphasis added.) And, any extension must be strictly construed against the state. City of Toledo v. Skarlov, 6th Dist. Lucas Nos. L-15-1303 and L-15-1304, 2017-Ohio-137, ¶ 7.
{¶ 40} Here, several types of tolling events are relevant to our analysis.
{¶ 41} First, under R.C. 2945.72(C), speedy-trial time is tolled during "[a]ny period of delay necessitated by the accused's lack of counsel," as long as the delay is not due to the trial court's lack of diligence in appointing counsel. State v. Perkins, 2d Dist. Montgomery No. 21515, 2007-Ohio-136, ¶ 9 ("Time spent without the benefit of counsel must be tolled.").
{¶ 42} Second, under R.C. 2945.72(E), when the defendant files a motion or demand for discovery, time is tolled for a "reasonable time until the motion is responded to and ruled upon." State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, ¶ 26; R.C. 2945.72(E); State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, 781 N.E.2d 159, syllabus. We have previously recognized that a "reasonable time" for the state to respond to a discovery demand is 30 days. State v. Bates, 6th Dist. Williams No. WM-12-002, 2013-Ohio-1270, ¶ 21. When determining the "reasonable" tolling period incurred by a defendant's motion, a reviewing court must consider the particular circumstances of the case, the complexity of the facts and difficulty of the legal issue involved, and the time constraints on the trial court. See, e.g., State v. Garrett, 6th Dist. Erie No. E-02-015, 2013-Ohio-5185, ¶ 21 (finding that a six-week delay in ruling on motion to sever was reasonable because the recently-appointed visiting judge needed time to familiarize himself with the case, which involved several felonies, including murder.).
{¶ 43} Also relevant to this case is R.C. 2945.72(H) which tolls the time during any continuance requested by the defendant and any reasonable continuance required by the state or the court. In addition to being "reasonable," a continuance for the benefit of the state or the court must also be "necessary." State v. Willis, 6th Dist. Wood Nos. WD-15-006 and WD-15-007, 2016-Ohio-616, ¶ 17, citing State v. Saffell, 35 Ohio St.3d 90, 91, 518 N.E.2d 934 (1988). Whether such a continuance is reasonable and necessary depends on the facts and circumstances of the case. Saffell at 91. To support the reasonableness of and necessity for a continuance granted other than upon the defendant's motion, "a trial court must journalize the continuance before the expiration of the time limit set forth in R.C. 2945.71 and must state the reason for the continuance." State v. Stamps, 127 Ohio App.3d 219, 224, 712 N.E.2d 762 (1st Dist.1998); State v. Hohenberger, 189 Ohio App.3d 346, 2010-Ohio-4053, 938 N.E.2d 419, ¶ 47 (6th Dist.).
{¶ 44} We apply these general legal principles to Boles' case.
b. Speedy-Trial Calculation
{¶ 45} Boles was served with the indictment on September 30, 2017, but the actual date of service does not count against the state for purposes of determining whether a defendant's right to a speedy trial has been violated. See, e.g. State v. Espinoza-Sioriano, 6th Dist. Erie No. E-18-067, 2020-Ohio-139, ¶ 13.
{¶ 46} Based upon our review of the record, there were many overlapping tolling events, attributable to Boles' conduct. However, most of the tolling that occurred in this case was due to Boles' regular and repeated requests for continuances, specifically from: October 17, 2017 until July 2, 2018; from July 17, 2018 until October 25, 2018; from November 1 until November 8, 2018; and from November 28, 2018 until April 1, 2019, for a total of 489 days.
{¶ 47} When the case was not subject to a continuance order, there were other events that caused the trial to be postponed. For example, on July 2, 2018, a hearing was held on Boles' motions to suppress, at the conclusion of which the trial court ordered the parties to file written closing arguments and took the matter "under advisement." The court denied the motions 169 days later, on December 18, 2018. "When a court takes [a] motion 'under advisement,' it 'necessitates' a reasonable amount of time be allowed for the judge to arrive at a decision." State v. Lopez, 6th Dist. Lucas No. L-88-161, 1989 WL 61685 (June 9, 1989). We need not decide whether the entire 169 days that it took the court to decide the motions was reasonable, however, because on July 17, 2018, Boles requested that the case be continued, again, which he regularly extended for months, until October 25, 2018. At a minimum, the time between July 2 and 17, 2018, i.e., 16 days, was tolled. Also, and as set forth below, he propounded discovery requests upon the state on July 11, 2018, which also tolled the running of the speedy-trial time clock.
{¶ 48} A bond hearing, set for October 25, 2018, was rescheduled for November 1, 2018 "at the request of the court." Because the court's journal entry failed to "set forth the reason[] justifying the continuance," those seven days are chargeable to the state. Hohenberger at ¶ 47.
{¶ 49} Boles propounded two sets of discovery requests upon the state. His first request was made on October 5, 2017, and the state responded on October 12, 2017. Boles' second demand was made on July 11, 2018, and the state responded five days later on July 16, 2018. In all, the speedy-trial time clock was tolled 14 days while the state responded to Boles' discovery requests.
{¶ 50} In sum, we calculate Boles' speedy-trial time as follows:
| Dates | Tolling Event | Days chargeable to the state |
|---|---|---|
| Oct. 1-4, 2017 | None | 4 |
| Oct. 5-12, 2017 | A reasonable time for the state torespond to Boles' discovery demand | Tolled |
| Oct. 13-16, 2017 | None | 4 |
| Oct. 17- July 2, 2018 | Case continued "at Defendant's request" | Tolled |
| July 2-Dec. 18, 2018 | Defense motions taken"under advisement" | Case tolled for areasonable time |
| July 11-16, 2018 | A reasonable time for the state torespond to Boles' discovery demand | Tolled |
| July 17-Oct. 25, 2018 | Case continued "at Defendant's request" | Tolled |
| Oct. 26-Nov. 1, 2018 | None | 7 |
| Nov. 1-8, 2018 | Case continued "at Defendant's request" | Tolled |
| Nov. 9-27, 2018 | None | 19 |
| Nov. 28-Apr. 1, 2019 | Case continued "at Defendant's request" | Tolled |
| Total number of actual days charged to the state | 34 |
|---|
{¶ 51} To restate, the days that were not subject to a tolling event were between October 1-4 and 13-16, 2017 (8 days); October 26-November 1, 2018 (7 days) and November 9-27, 2018 (19 days) for a total of 34 days. Boles was held in custody for all of those days. When the defendant is held in custody in lieu of bail, each day he is held counts as three days for speedy-trial purposes. R.C. 2945.71(E). Accordingly, each of the 34 days counts as three days for speedy-trial purposes, for a total of 102 days charged to the state.
{¶ 52} Because the number of days chargeable to the state, 102, is less than the 270 days within which the state was required to bring Boles to trial under R.C. 2945.71(C)(2), we conclude that Boles' statutory speedy-trial right was not violated. Accordingly, we find Boles' third assignment of error not well-taken.
The penalty enhancement for trafficking in the vicinity of a school.
{¶ 53} Boles' convictions for trafficking in cocaine and heroin each included a sentencing enhancement for committing the respective offenses "in the vicinity of a school." R.C. 2925.03(C) provides, in relevant part,
Whoever violates division (A) of this section is guilty of one of the following: * * *
(4) [i]f the drug involved in the violation is cocaine * * * whoever violates division (A) of this section is guilty of trafficking in cocaine. The penalty for the offense shall be determined as follows: * * * (b) * * * if the offense was committed in the vicinity of a school * * * trafficking in cocaine is a felony of the fourth degree. * * *
(6) If the drug involved in the violation is heroin * * * whoever violates division (A) of this section is guilty of trafficking in heroin. The penalty for the offense shall be determined as follows: * * * (d) * * * [i]f the amount of the drug involved is within [the applicable] range and if the offense was committed in the vicinity of a school * * * trafficking in heroin is a felony of the second degree. (Emphasis added.)
{¶ 54} In his fourth assignment of error, Boles alleges that the sentencing enhancements "should" not apply to him because he "only * * * transported" drugs and "no sale of drugs took place within a school zone." Boles admits, not for the first time, that he can find no legal support for his argument. Nor can this court.
{¶ 55} Boles was convicted under R.C. 2925.03(A)(2) for knowingly transporting controlled substances. The penalty enhancements for trafficking in cocaine and heroin, as set forth above, apply to "whoever violates division (A) of [R.C. 2925.03]." Thus, the penalty enhancements, by their express language, apply to the conduct described in Section (A)(2), to the same extent that they apply to the conduct described in Section (A)(1), which prohibits knowingly selling or offering to sell controlled substances. See, e.g., State v. Stigall, 6th Dist. Lucas No. L-14-1053, 2015-Ohio-137; State v. Howard, 12th Dist. Warren No. CA2012-04-034, 2013-Ohio-1489. Boles' claim that the penalty enhancements do not apply absent a showing of actually selling drugs within a school zone, is not well-taken.
{¶ 56} Next, Boles asserts—on the one hand—that the school specification penalties are "strict liability" enhancements but then asserts—on the other hand—that "there was no intent shown that [he] intended to traffic within a school zone." Boles was right the first time. Indeed, "[a]n offense is 'committed in the vicinity of a school' if the offender commits the offense * * * within one thousand feet of the boundaries of any school premises, regardless of whether the offender knows the offense is being committed * * * within one thousand feet of the boundaries of any school premises." (Emphasis added.). R.C. 2925.01(P). Thus, the state need not have shown that Boles was aware of his location, i.e., his proximity to a school, at the time of the offense. State v. Page, 6th Dist. Erie No. E-17-020, 2018-Ohio-2866, ¶ 38.
{¶ 57} The state presented evidence that Boles knowingly transported narcotics from two different locations, each within 1000 feet of a school. Thus, the state presented the testimony of Detective Heban who established that the distance from the location where he first saw Boles, as Boles exited his girlfriend's home, was 354 feet from "Brightside Academy," which serves about 150 preschool aged children. The state also presented evidence that the distance from the location where the police pulled over the vehicle on Lagrange Street was 639 feet from Sherman Elementary School, which is part of the Toledo Public Schools. While Boles does not contest either calculation, he complains that the "orchestrated" arrest "could have been made anywhere" and "did not have to occur in a school zone." Suffice it to say that Boles cites no authority in support of his suggestion that it was incumbent on the police to delay their lawful stop of the vehicle he was riding in to avoid "piling on" the penalty enhancements. As for his complaint that the location of the arrest and therefore the penalty enhancement were "out of [his] control," we might be inclined to agree with Boles—given that this is a strict liability enhancement—were it not for the part about him knowingly transporting 6.28 grams of heroin and .38 grams of cocaine. For all of these reasons, we find Boles' fourth assignment of error not well-taken.
The imposition of court costs.
{¶ 58} In his fifth and final assignment of error, Boles challenges the imposition of costs. Our standard of review on this issue is whether the imposition of costs was contrary to law. R.C. 2953.08(A)(4) and (G)(2)(b); State v. Farless, 6th Dist. Lucas Nos. L-15-1060 and L-15-1061, 2016-Ohio-1571, ¶ 4, citing State v. Collins, 2015-Ohio-3710, 41 N.E.3d 899, ¶ 30 (12th Dist.) ("An appellate court may not modify a financial sanction unless it finds by clear and convincing evidence that it is not supported by the record or is contrary to law.").
{¶ 59} In its judgment entry, the trial court ordered that "[Boles] found not to have nor reasonably may be expected to have the means to pay the costs of prosecution as authorized by law. One-half of all costs, including the costs of prosecution ordered waived. If available, [Boles] permitted to perform community service hours while in prison to work off the remaining one-half of court costs." (Emphasis added.)
{¶ 60} It is unclear to this court whether the lower court intended to impose any costs other than the costs of prosecution. But, as we have held, "if a trial court wishes to impose the separate costs of confinement and appointed counsel, it must explicitly do so." State v. Middlebrooks, 6th Dist. Sandusky No. S-18-032, 2019-Ohio-2149, ¶ 33 (Finding that the trial court's use of "court costs" means only the costs of prosecution required by R.C. 2947.23. It does not "also mean" the costs of confinement and appointed counsel provided for in R.C. 2929.18(A)(5)(a)(ii) and 2941.51(D), respectively.). Accordingly, we interpret the court's order as limited to the imposition of the costs of prosecution.
{¶ 61} "The imposition of court costs on all convicted defendants is mandatory." State v. Taylor, Slip Opinion No. 2020-Ohio-3514, ¶ 6, citing R.C. 2947.23(A)(1)(a) ("In all criminal cases * * * the judge or magistrate shall include in the sentence the costs of prosecution * * * and render judgment against the defendant for such costs."). "This strict statutory language 'requires a court to impose costs against all convicted defendants,' indigent or not." (Emphasis in the original). Id., quoting State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. But, R.C. 2947.23(C) gives a trial court continuing jurisdiction to "waive, suspend, or modify the payment of the costs of prosecution * * * at the time of sentencing or at any time thereafter." Thus, while the court must impose costs, it may also waive, suspend, or modify them. In Taylor, the Supreme Court held that "a trial court is not required to consider the defendant's ability to pay in assessing a motion to waive, suspend, or modify court costs under R.C. 2947.23(C), though it is permitted to do so."
{¶ 62} Consistent with the above, the trial court considered Boles' ability to pay in deciding to waive half of the costs of prosecution. On appeal, Boles argues that the trial court erred in ordering him to pay any costs in light of its finding that he has no ability to pay. We disagree. R.C. 2947.23(C) "give[s] broad discretion to [trial] courts to make decisions that are reasonable under the circumstances." Taylor at ¶ 7. Similarly, the trial court's order—that Boles be allowed to perform community service hours in prison to "work off" those costs—is expressly allowed by R.C. 2947.23(A)(1)(a)(ii).
{¶ 63} We may not modify the trial court's imposition of costs unless we find by clear and convincing evidence that it is not supported by the record or is contrary to law. Having found neither, we find that Boles' fifth assignment of error is not well-taken.
Conclusion
{¶ 64} We find Boles' five assignments of error not well-taken and affirm the April 3, 2019 judgment of the Lucas County Court of Common Pleas. Boles is ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
Thomas J. Osowik, J.
Christine E. Mayle, J.
CONCUR. /s/_________
JUDGE /s/_________
JUDGE /s/_________
JUDGE