[Cite as State v. Crook , 2020-Ohio-3509.]

COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : ANGELA CROOK : Case No. 2019CA0017 : Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 18CR205

JUDGMENT: Affirmed

DATE OF JUDGMENT: June 26, 2020

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant BENJAMIN E. HALL JAMES ANZELMO 318 Chestnut Street 446 Howland Drive Coshocton, OH 43812 Gahanna, OH 43230Coschocton County, Case No. 2019CA0017 2

Wise, Earle, J. {¶ 1} Defendant-Appellant Angela Crook appeals the October 1, 2 019 judgment of conviction and sentence of the Coshocton County Court of Com mon Pleas. PlaintiffAppellee is the state of Ohio. FACTS AND PROCEDURAL HISTORY {¶ 2} On November 1, 2018, Coshocton County Sheriff's Deputy Wi lliam Mox was working a 7:00 p.m. to 3:00 a.m. shift with his canine partner Chili. Shortly before 2:00 a.m. Mox observed a Ford Explorer exiting an apartment complex known as a high drug area. As Mox followed the vehicle, he ran the plate number whic h came back as belonging on a Honda. Mox had dispatch run the number again to be certain , but the plate still came back as belonging on a Honda. {¶ 3} Mox initiated a traffic stop. The driver, later identifie d as Crook, pulled into a gas station. Mox approached the vehicle and asked for Crook's license, registration and proof of insurance which she retrieved from the center console of the vehicle. She also gave Mox a ticket issued by the Canton Police Department for fi ctitious places which she had received a few days earlier. Also present in the vehicle wa s John Ellis who was seated in the front passenger seat. Crook stated she lived in S ugarcreek, but had come to Coshocton to give Ellis, her ex son-in-law a ride to Wal-Mar t, and also to retrieve her social security disability (SSD ) deposit which went on a Wal-Ma rt card at midnight on the first of every month. Crook explained she needed the SSD funds before she could afford to transfer the plates on her vehicle. {¶ 4} Deputy Wade Garrett arrived to assist Mox. Garrett ran Cr ook's information on his portable r adio while watching Crook and Ellis. Mox retri eved Chili from his cruiserCoschocton County, Case No. 2019CA0017 3 and ran the dog around Crook's vehi cle. Chili alerted on the ve hicle, indicating the presence of narcotics within. {¶ 5} Crook and Ellis were placed in two different cruisers whi le Mox and Garrett searched Crook's vehicle and purse. A large Crown Royal whiskey bag was located in the center console of the vehicle. The bag contained substances later identified by the Bureau of Criminal Investigation as 26.82 grams of methamphetam ine, 16.30 grams of marijuana, 2.07 grams of a fentanyl related compound. It additi onally contained a digital scale and a small spoon. In Crook's purse, Mox discovered "dime bags" which are small baggies typically used to package drugs for distribution. Some of the dime bags in Crook's purse were consistent with the packaging of the drugs found in the Crown Royal bag. Also located in Crook's purse were smaller Crown Royal bags and $194 cash. {¶ 6} Crook was arrested that morning and posted bond on Novemb er 14, 2018. The matter was bound over to the grand jury which issued its in dictment on January 25, 2019. A summons was issued and service attempted on February 6, 2019, however, Crook had moved without apprising the court of her new address. Crook was eventually served with the indictment on April 1, 2019. The indictment cha rged Crook with one count of trafficking in marijuana, a felony of the fifth degree, one count of aggravated trafficking in methamphetamine, a felony of the second degree, and one coun t of trafficking in a fentanyl related compound, a felony of the fourth degree. {¶ 7} Counsel for Crook requested discovery on April 29, 2019. The state responded the same day and requested reciprocal discovery. Coun sel for Crook did not file reciprocal discovery until August 12, 2019.Coschocton County, Case No. 2019CA0017 4 {¶ 8} On August 12, 2019, Crook's counsel filed a motion to dis miss the indictment for violation of Crook's speedy trial rights. Counse l argued that while Crook had moved, a friend of Crook's had contacted the Coshocton Coun ty Clerk of Courts on Crook's behalf and reported her new address sometime between Fe bruary 6 and February 8, 2019. On August 14, 2019, the state replied, arguin g Crook's failure to keep the court apprised of her address, delaying service of summons, tolled time. The state additionally argued Crook failed to respond to the state's requ est for reciprocal discovery within the 14-day time frame set forth in Coshocton County Loca l Rule 17.4, thus tolling time until her eventual response. {¶ 9} On August 15, 2019, the trial court denied Crook's motion citing her failure to update her address with the court and her failure to timely respond to the state's request for discovery. {¶ 10} Crook opted to proceed to a jury trial which took place on September 24, 2019. The state presented testimony from Mox, Garrett, and a fo rensic scientist from the Bureau of Criminal Investigations. Crook testified on her own b ehalf claiming the drugs belonged to Ellis and she had no idea they were in the car. The jury returned verdicts of guilty on each count of the indictment. {¶ 11} Crook filed an appeal and the matter is now before this court for consideration. She raises four assignments of error as follow: I {¶ 12} "CROOK'S SPEEDY TRIAL RIGHTS WERE VIOLATED IN CONTRAVENTION OF R.C. 1945.71 ET SEQ. AND THE SIXTH AMENDMENT T O THE UNITED STATES CONSTITUTION."Coschocton County, Case No. 2019CA0017 5

II {¶ 13} "CROOK'S CONVICTIONS ARE BASED ON INSUFFICIENT EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEE NTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10 & 1 6, ARTICLE I OF THE OHIO CONSTITUTION." III {¶ 14} "CROOK'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFT H AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 & 16, ARTICLE I OF THE OHIO CONSTITUTION." IV {¶ 15} "THE TRIAL COURT UNLAWFULLY ORDERED CROOK TO SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HER RIGHTS TO DUE PROCES S, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AN D THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITES STATES CONSTITUTION." I {¶ 16} In her first assignment of error, Crook argues the trial court erred in denying her motion to dismiss the indictment because her speedy trial r ights were violated. We disagree. {¶ 17} The right to a speedy public trial is established in the Ohio Constitution, Article I, Section 10. “In any trial, in any court, the party a ccused shall be allowed to appear and defend in person and with counsel; to demand the nat ure and cause of theCoschocton County, Case No. 2019CA0017 6 accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process to procure the attendance of wit nesses in his behalf, and a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed * * *.” See, State v. MacDonald , 48 Ohio St.2d 66, 68, 357 N.E.2d 40, 42(1976). {¶ 18} A speedy-trial claim involves a mixed question of law an d fact. State v. Larkin , 5 th Dist. Richland No. 2004-CA-103, 2005-Ohio-3122. As an appellat e court, we must accept as true any facts found by the trial court and supp orted by competent, credible evidence. With regard to the legal issues, however, we apply a de novo standard of review and thus freely review the trial court's application of the law to the facts. Id. When reviewing the le gal issues presented in a speedy-trial cla im, we must strictly construe the relevant statutes against the state. Brecksville v. Cook , 75 Ohio St.3d 53, 57, 661 N.E.2d 706, 709 (1996). {¶ 19} Pursuant to R.C. 2945.73, a person who is not brought to trial within the proscribed time periods found in R.C. 2945.71 and R.C. 2945.72 “shall be discharged” and further criminal proceedings based on the same conduct are barred. A defendant against whom a felony charge is pending must be brought to tria l within the 270–day time limit mandated by R.C. 2945.71(C)(2). {¶ 20} We note Crook's argument on appeal provides no actual ca lculation, and simply states the date of arrest and the day of trial. Crook's argument further ignores tolling factors raised below,. Specifically, Crook ignores her failure to provide the court or her attorney with her new address as well as her failure to tim ely respond to the state's request for reciprocal discovery.Coschocton County, Case No. 2019CA0017 7 {¶ 21} First, the failure of a criminal defendant to respond to a request for reciprocal discovery within a reasonable time constitutes negle ct which tolls the running of the statutory speedy trial time. State v. Eutsey , 5th Dist. Stark No. 2018-CA-00045, 2020-Ohio-2756 ¶ 30 citing State v. Palmer , 112 Ohio St.3d 457, paragraph one of the syllabus, 860 N.E.2d 1011 (2007). See also R.C. 2945.72(E). {¶ 22} Next, in State v. Stokes , 193 Ohio App.3d 549, 2011-Ohio-2104, 925 N.E.2d 1192, another case involving a defendant's failure to keep the trial court apprised of a valid address, the Twelfth District found this failure tolled t ime:

Our independent review of the record shows that the delay betwe en September 13, 2007, the date of Stokes's first appearance of re cord, and January 4, 2010, the date of his arrest in Florida, was cau sed by Stokes's failure to furnish a reliable address to authorities o r otherwise maintain appropriate contact with his attorney or the court. We reach this conclusion because the facts of the case indicate that Stokes had sufficient notice of the pendency of charges against him to require, at minimum, that he continue to make himself readil y available to the court and his attorney, which would include pr oviding a reliable address. See State v. McClaine (Dec. 15, 1983), Cuyahoga App. No. 46969, 1983 WL 2911, at *2. In McClaine , the Eighth District Court of Appeals held that the days between the issuan ce of defendant's summons and his eventual re-arrest were not chargeable to the speedy-trial time limit when “ [a]bsent evide nceCoschocton County, Case No. 2019CA0017 8
that [defendant's] failure to receive [service of summons] resu lted from circumstances beyond his control, defendant was obliged to accept and receive that notice at the address he supplied.” Id . The court further held that a defendant's failure to make himself “ readily available for subsequent appearances by providing a reliable address can be ‘neglect or [an] improper act of the accused’ wh ich extends the speedy trial time limits, pursuant to R.C. 2945.72( D).” Id

. Stokes , supra, ¶ 14-15.

{¶ 23} With those principals in mind, we turn to calculation. R .C. 2945.71(C)(2) provides “each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days.” R.C. 2945.71(E). When c alculating speedy trial time, the day of arrest is not to be counted. State v. Friedhof , 9th Dist. Medina No. 2505- M, 1996 WL 385612, *3 (July 10, 1996), citing State v. Steiner , 71 Ohio App.3d 249, 250- 251 (9th Dist.1991); see also Crim.R. 45(A). {¶ 24} Crook was arrested on November 1, 2018 and held in custo dy until she made bond on November 14, 2018. Because the day of arrest does not count toward our calculation, and because Crook was held in jail, 13 x 3 = 39 da ys. {¶ 25} The Coshocton County Sheriff's office attempted to serve Crook with her summons on the indictment at her last reported address on Febru ary 3, 2019. Because Crook had failed to provide the court with her new address, ser vice was not perfected until April 1, 2019. Thus time tolled on February 3, 2019. Nove mber 15, 2018 through February 3, 2019 is 81 days. 81 + 39 = 120.Coschocton County, Case No. 2019CA0017 9 {¶ 26} Next, Crook was served on April 1, 2019. On April 29, 20 19, after complying with Crook's request for discovery the state requested reciproc al discovery. Twenty-nine days had passed before the state's request. 120 + 29 = 149. {¶ 27} Crook filed her response to the state's request for disc overy on August 12, 2019 and her trial took place on September 24, 2019. August 12, 2019 through September 24, 2019 is 44 days. 149 + 44 = 193. {¶ 28} Crook was therefore brought to trial well within 270 day s. Accordingly, the first assignment of error is overruled. II, III {¶ 29} We address appellant's second and third assignments of e rror together as they are interrelated. Crook argues her convictions are against the manifest weight and sufficiency of the evidence. We disagree. {¶ 30} On review for sufficiency, a reviewing court is to exami ne the evidence at trial to determine whether such evidence, if believed, would su pport a conviction. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "The relevant inqu iry is whether, after viewing the evidence in a light most favorable to the pro secution, any rational trier of fact could have found the essential elements of the crime pr oven beyond a reasonable doubt." Jenks at paragraph two of the syllabus, following Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manif est weight, a reviewing court is to examine the entire record, weigh the evidence and a ll reasonable inferences, consider the credibility of wit nesses and determine "whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a mani fest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin , 20 OhioCoschocton County, Case No. 2019CA0017 10 App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins , 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only in the exceptional case in which the evidence weighs heavily ag ainst the conviction." Martin at 175. {¶ 31} Crook argues her convictions are against the manifest we ight and sufficiency of the evidence because she testified under oath th at the drugs and drug paraphernalia did not belong to her, and she had no knowledge o f their presence in her vehicle. She argues the drugs and paraphernalia belonged to Ell is. {¶ 32} First, a jury is not required to believe a witness simpl y because the witness is under oath, and may believe all, part or none of any witness 's testimony. The jury in this matter was so instructed. Transcript of trial (T.) 210. {¶ 33} Second, Crook was not charged with possessing the drugs and paraphernalia. Rather, the indictment alleged Crook "did knowin gly prepare for shipment, ship, transport, deliver, prepare for distribution or distribut e a controlled substance," specifically, marijuana, a fentanyl-related compound, and metha mphetamine, "when the offender knows or has reasonable cause to believe that the cont rolled substance or a controlled substance analog is intended for sale or resale by t he offender or another person * * *." {¶ 34} The state presented evidence to show Crook's purse conta ined empty "dime bags" which were consistent with the packaging of the two fentanyl-related compounds found in the large Crown Royal bag. T. 120-122, 186. Crook testified that Ellis must have put the drugs in the center console while the d eputies were momentarily distracted. T. 175. The jury further heard Crook allege she was destitute for cash so sheCoschocton County, Case No. 2019CA0017 11 could buy tags for her vehicle. T. 171-172. She testified she w as on her way to Wal-Mart at 2:00 a.m. to collect her SSD payment for that purpose, yet c onceded she had $190 in cash on her person. T. 183. As for the empty dime bags in her p urse, Crook testified she used them to hold her medications. T. 176. {¶ 35} There was no dispute at trial that drugs were located in Crook's car. The only matters for the jury to settle were whether Crook was awar e of the presence of the drugs, and whether they were intended for sale or resale either by herself or Ellis. Given the forgoing facts, we find the state produced sufficient evide nce to support convictions on each charge. We further find the jury did not lose its way i n believing the state's evidence and discounting the testimony of Crook. {¶ 36} The second and third assignments of error are overruled. IV {¶ 37} In her final assignment of error Crook argues the record does not support the imposition of consecutive sentences as it is disproportiona te to her conduct. We disagree. {¶ 38} We review felony sentences using the standard of review set forth in R.C. 2953.08. State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22; State v. Howell , 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31 {¶ 39} In State v. Gwynne , a plurality of the Supreme Court of Ohio held that an appellate court may only review individual felony sentences und er R.C. 2929.11 and R.C. 2929.12, while R.C. 2953.08(G)(2) is the exclusive means of app ellate review of consecutive felony sentences. 158 Ohio St.3d 279, 2019-Ohio-476 1, 141 N.E.3d 169 ¶16-18.Coschocton County, Case No. 2019CA0017 12 {¶ 40} R.C. 2953.08(G)(2) provides we may either increase, redu ce, modify, or vacate a sentence and remand for resentencing where we clearly and convincingly find that either the record does not support the sentencing court’s findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), o r the sentence is otherwise contrary to law. See, also, State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659, ¶ 28; State v. Gwynne , supra, ¶16. {¶ 41} Clear and convincing evidence is that evidence “which wi ll provide in the mind of the trier of facts a firm belief or conviction as to th e facts sought to be established.” Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of t he syllabus. See also, In re Adoption of Holcomb , 18 Ohio St.3d 361, 481 N.E.2d 613 (1985). “Where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether th e trier of facts had sufficient evidence before it to satisfy the requisite degree o f proof.” Cross , 161 Ohio St. at 477 120 N.E.2d 118. {¶ 42} When imposing consecutive sentences, a trial court must state the required findings at the sentencing hearing. State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29. Because a court speaks through its journal , the court should also incorporate its statutory findings into the sentencing entry. Id . However, a word-for-word recitation of the language of the statute is not required. Id . As long as the reviewing court can discern the trial court engaged in the correct analysis and can determine the record contains evidence to support the findings, consecutive sentence s should be upheld. Id

. {¶ 43} Crook does not argue that the trial court failed to make the appropriate findings before imposing consecutive sentences or failed to inc lude the same in itsCoschocton County, Case No. 2019CA0017 13
sentencing judgment entry. Rather, she argues her consecutive s entences were unwarranted as they were disproportionate to her conduct. We di sagree. {¶ 44} Deputy Mox testified that the amount of methamphetamine found in Crook's vehicle was extraordinary. In fact, the most methamphetamine he had every encountered during a drug bust. T. 114. Forensic scientist Martin Lewis of the Bureau of Criminal Investigation testified the methamphetamine recovered from Croo k's vehicle weighed 26.82 which is five times the bulk amount, but less than 50 tim es the bulk amount. In addition, two separate baggies of a fentanyl-related compound w ere also recovered from the vehicle the combined weight of which was 2.07 grams. {¶ 45} During sentencing the trial court noted it had witnessed all of the evidence presented and further:

The other problem you have is that this community has been the epicenter if not close to the epicenter of a major drug epidemi c in the United States. It's as if it hit right here. And the harm cause d by that has been so great that. Ms. Crook, you picked the wrong jurisdi ction. The court also notes that you drove on November 1st, 2018, you drove all the way from Sugarcreek, Ohio, and in your car was lo cated a large amount of methamphetamine, scales and baggies that coul d be used to distribute that methamphetamine. Let's not forget the fentanyl-related compound. * * *Coschocton County, Case No. 2019CA0017 14
You drove the product down here. You had a partner to assist yo u with distribution. And for somebody who was out of money – I kn ow that the $194, the $4 was separate. That's what you had left ov er. That’s what you had left to get through the next day. That's th e Social Security disability case. The $190 appears to be money that you had already made to distribute the poison that has wreaked havoc up on this region. T. 236-237.

{¶ 46} The trial court then proceeded to sentence Crook after w hich it ordered Crook to serve the sentences consecutively, finding consecutive sentences necessary to protect the public from future crime, "from the future distribu tion of methamphetamine and fentanyl and other illegal substances" and to punish the offend er as the consecutive sentences were not disproportionate to Crook's conduct and the danger she poses to the public. T. 238. {¶ 47} The trial court engaged in the appropriate analysis and the record contains evidence to support the trial court's findings. Additionally, t he trial court included its statutory findings into the judgment entry. The final assignmen t of error is therefore overruled.Coschocton County, Case No. 2019CA0017 15

{¶ 48} The judgment of conviction and sentence of the Coshocton County Court of Common Pleas is affirmed.

By Wise, Earle, J. Gwin, P.J. and Delaney, J. concur.

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