[Cite as State v. Kozic, 2014-Ohio-3788.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

V. 

ZOLTAN AKA JOEY KOZIC, 

 DEFENDANT-APPELLANT. 

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CASE NO. 11 MA 160 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 10CR506 

JUDGMENT: Affirmed in part 

Reversed in part 

Remanded 

APPEARANCES: 

For Plaintiff-Appellee Paul Gains 

Prosecutor 

Ralph M. Rivera 

Assistant Prosecutor 

21 W. Boardman Street, 6th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant Attorney Peter Galyardt 

Assistant State Public Defender 

250 East Broad Street, Suite 1400 

Columbus, Ohio 43215 

JUDGES: 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Hon. Mary DeGenaro 

 

 Dated: August 27, 2014 
[Cite as State v. Kozic, 2014-Ohio-3788.]

DONOFRIO, J. 

{¶1} Defendant-appellant Zoltan Kozic was convicted of five counts of 

burglary, two counts of drug trafficking, and a single count of engaging in a pattern of 

corrupt activity following a jury trial in Mahoning County Common Pleas Court and 

sentenced to an aggregate term of imprisonment of eighteen years. He appeals his 

conviction and sentence. 

Main Market Road 

{¶2} This case stems from a rash of burglaries that occurred in Columbiana, 

Mahoning, Trumbull, and Geauga Counties in late 2009 and early 2010. On 

November 24, 2009, Chris Natali returned from work to his home at 16663 Main 

Market Road in Parkman, Geauga County, Ohio, to find a knife collection box he kept 

near the fireplace had been thrown to the ground. Upstairs, he found dresser drawers 

pulled out and a coin collection and other items missing, including a credit card. 

Natali notified police and later was notified by the credit card issuer that the card was 

being used fraudulently. One of those fraudulent transactions occurred at a gas 

station. Video surveillance footage taken from the gas station when the card was 

used fraudulently showed Jennifer Kozic exiting a green Cadillac and a red Jeep was 

nearby which appellant’s codefendant, Jamie Kozic, was known to drive. 

Mystic Rock Road 

{¶3} On December 27, 2009, Jareth Gaudio and his wife left their home at 

13831 Mystic Rock Road in Columbiana, Mahoning County, Ohio, to take one of their 

sons to the airport. They returned home to find their front door kicked in and 

medication, money, a television, and jewelry missing. Police responded and a canine 

unit picked up a scent that led to the nearby home of Orazio Merlo. A few weeks later 

Merlo found a cellular phone near her mailbox and turned it over to police. Through 

the phone’s cellular service provider, the police determined that the phone belonged 

to appellant’s wife, Heather Kozic who resided at 238 Wilson Street, Struthers, Ohio 

44471. 

McCoy Avenue 

{¶4} On January 22, 2010, Cathy Applegate was returning from work to her 
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home located next to an apartment building on McCoy Avenue in East Liverpool, 

Ohio. A driver sitting in a parked car nearby caught her attention as strange. She 

then observed two white males going from the front of an apartment building to the 

back. When she got home, she told her husband, Lawrence Applegate III, about what 

she had observed. She then headed back out with her daughter to take her to a 

school function. She observed double sliding glass doors open and the curtains 

blowing and told her husband to call the police. Lawrence observed two people 

coming from the back of the apartment building put something they had been 

carrying into the trunk of a car parked nearby. He called the police after the car sped 

away. 

{¶5} Brandy Ramirez, who lives across the street from the apartment 

building, observed two males coming from the back of the apartment building. She 

made eye contact with one of them before he drove away. She later identified 

appellant from a photo array as being that person. 

{¶6} Susan Williams returned to her home at the apartment building on 

McCoy Avenue to find the back sliding glass door to her kitchen open. She found 

money lying on her patio, pill bottles thrown, and her bedroom a mess. Three 

televisions, $300, and jewelry were missing from her apartment. A latent fingerprint 

taken from the scene matched the right index finger of appellant’s codefendant, 

Jamie Zoltan. 

New England Square 

{¶7} On January 25, 2010, Ronald Sines returned from work to his home at 

46014 New England Square in New Waterford, Columbiana County, Ohio. He 

noticed things out of place and thrown about and that the back sliding glass door had 

been pried open. A digital music player, $37.40 in change, and five rings were 

missing. Police processing the scene noticed that his neighbor’s back door was also 

open. 

{¶8} Mark Liber returned to his home at 46022 New England Square in New 

Waterford, Columbiana County, Ohio to find police investigating a burglary next door 
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at his neighbor’s home. Liber discovered his back door open and that his own home 

too had been burglarized. Missing were a computer, two televisions, purses, a 

camera, and some jewelry. 

South Pointe 

{¶9} Rebecca Ashbridge lives at a condominium, Unit 55-D, located in a 

condominium development known as South Pointe, at 9191 North Lima Road, in 

Poland Township, Mahoning County, Ohio. On January 30, 2010, she returned home 

to find the front door unlocked. Inside, the home had been ransacked and a 

television, gaming system, and various jewelry pieces were missing. 

Shepherd of the Valley 

{¶10} At a retirement community known as Shepherd of the Valley, William 

Wade lives in a condominium, Unit 306, located at 9111 Sharrott Road, Poland, in 

Beaver Township, Ohio. On February 3, 2010, he returned home to find the back 

door open. A handgun, cash, and watch were missing. Police took casts of pry marks 

left around the back door and submitted them to BCI for analysis. 

Stone Gate 

{¶11} On February 6, 2010, a condominium, Unit 202, located in the Stone 

Gate housing development at 9264 Sharrott Road was found broken into by Doug 

Dilullo. Dillulo was a construction manager for the development for which this unit 

was the model unit. It was fully furnished with utilities turned on and Dillulo checked 

on it once a week. He found that the front door jamb was broke and that the unit had 

been broken into, although there was nothing taken. 

Ivy Hills 

{¶12} On February 14, 2010, James Fedor discovered that his mother’s 

condo had been broken into. A side patio door was open and there were pry marks 

on a rear patio door which was also open. The condo was located at 8550 Ivy Hills, 

Unit 20 in Boardman, Ohio. The bedroom had been ransacked and a television and 

jewelry were missing. The condo had been vacant since December 26, 2009, when 

his mother had passed away. 
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West Park Avenue 

{¶13} On February 5, 2010, Michael Naughton, who lived in a triplex 

condominium at 840 West Park Avenue in Hubbard, Trumbull County, Ohio, heard a 

loud noise coming from his attached garage. When he went to check on the noise, he 

observed that a door to the garage had been pried and knocked partially off the door 

jamb. He then called the police. 

{¶14} Meanwhile, a letter carrier for the United State Postal Service and a 

bypassing motorist observed an individual in that area acting suspiciously. A 

description of the individual was broadcast to other police officers and, subsequently, 

Hubbard Officer Gerald Smith encountered appellant’s codefendant, Jamie Kozic, 

nearby and arrested him following a positive identification by the letter carrier and the 

motorist. A screwdriver was recovered from Jamie Kozic’s red Jeep Cherokee. 

{¶15} Following the rash of burglaries, law enforcement had conducted 

numerous controlled buys of oxycodone from appellant, Zoltan Kozic, and Jennifer 

Kozic. 

{¶16} On May 20, 2010, a Mahoning County grand jury issued a twenty-two 

count indictment alleging a criminal enterprise among appellant, Zoltan Kozic, and 

Jennifer Kozic. Of those twenty-two counts, appellant was indicted on nine counts: 

six counts of burglary in violation of R.C. 2911.12(A)(2)(C) (second-degree felonies); 

two counts of drug trafficking in violation of R.C. 2925.03(A)(1)(C)(1)(c) (third-degree 

felonies); and one count of engaging in a pattern of corrupt activity in violation of R.C. 

2923.32(A)(1)(B) (first-degree felony). 

{¶17} On August 1, 2011, the day set for trial and before the trial commenced, 

each of the defendants made renewed motions for severance of the trial as to 

defendants and as to counts in the indictment. Prior to trial, each of the defendants 

had filed formal written motions for severance which the trial court had earlier denied. 

This time, the trial court again denied the motions as to appellant and Jamie Kozic, 

but granted Jennifer Kozic’s motion to sever her case for trial based on a perceived 

Bruton issue. (Trial Tr., Vol. I, 74-83.) Apparently, the state wanted to call a witness 
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who was in the jail with Jennifer Kozic and heard her talking about her involvement in 

the crimes alleged in the indictment, including her brother’s Jamie Kozic’s and 

appellant’s roles in those crimes. 

{¶18} In Bruton v. United States, 391 U.S. 123, 137, 88 S.Ct. 1620, 20 

L.Ed.2d 476 (1968), Bruton was convicted of armed postal robbery after a joint trial 

with his co-defendant, Evans. At trial, a witness testified that Evans confessed to him 

that Evans and Bruton committed the robbery. Evans did not testify. The trial court 

instructed the jury that they were only to consider Evans’ confession against Evans 

and were not permitted to consider it against Bruton. The Supreme Court reversed 

Bruton’s conviction holding that “because of the substantial risk that the jury, despite 

instructions to the contrary, looked to the incriminating extrajudicial statements in 

determining petitioner’s guilt, admission of Evans’ confession in this joint trial violated 

petitioner’s right of cross-examination secured by the Confrontation Clause of the 

Sixth Amendment.” Bruton, 391 U.S. at 125. 

{¶19} Jennifer Kozic later pleaded guilty to each of the counts she was 

charged with in the indictment with the engaging in a pattern of corrupt activity count 

amended from a first-degree felony to second-degree felony. She was sentenced to 

community control sanctions, later violated those community control sanctions by 

testing positive for illegal drugs and was sentenced to four years in prison. 

{¶20} Appellant’s and codefendant Jamie Kozic’s trial proceeded before a 

jury. The state presented testimony from fifty-four witnesses and had sixty-seven 

exhibits admitted into evidence. The state’s principal witness was Barry Stewart who, 

with the exception of the Main Market Road burglary in Geauga County and the West 

Park Avenue burglary in Trumbull County, had committed each of the burglaries with 

appellant and/or codefendant Jamie Kozic, including all of the Columbiana and 

Mahoning County burglaries. He testified in detail how they committed each of those 

burglaries and where they sold the stolen items afterwards. 

{¶21} Following presentation of the state’s case, the trial court granted 

appellant’s Crim.R. 29 motion to dismiss count 1, stemming from the burglary on 
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Main Market Road in Geauga County. (Trial Tr., Vol. IX, 2020-2022.) On August 15, 

2011, the jury found appellant guilty of all of the remaining counts for which he was 

indicted: five counts of burglary (counts 3, 5, 6, 7, and 8), two counts of drug 

trafficking (counts 14 and 15), and one count of engaging in a pattern of corrupt 

activity (count 22). The trial court sentenced him to an aggregate term of 

imprisonment of eighteen years. This appeal followed. 

Assistance of Counsel

{¶22} Appellant raises five assignments of error. Appellant’s first assignment 

of error states: 

Zoltan Kozic was deprived of his right to the effective assistance 

of counsel. Sixth and Fourteenth Amendments, United States 

Constitution; Section 16, Article I, Ohio Constitution. (Trial Transcript, at 

732, 734, 794, 1228-1243, 1422-1430, 1538, 1842, 1848, 1867, 1887, 

2020-2021, 2095); (July 1, 2010 Judgment Entry). 

{¶23} The standard for determining ineffective assistance of counsel was set 

out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 

669, 104 S.Ct. 2052 (1984). In order to demonstrate ineffective assistance of 

counsel, an appellant must first show that his defense counsel was deficient. Id. This 

requires that appellant show that his defense counsel’s performance fell below an 

objective standard of reasonableness. Id. Secondly, an appellant must then prove 

that he was prejudiced by defense counsel’s deficiency. This requires that appellant 

show that there is a “reasonable probability that but for [defense] counsel’s 

unprofessional errors, the result of the proceeding would have been different.” Id. at 

694. 

{¶24} Appellant alleges four areas of ineffective assistance of counsel, none 

of which demonstrate deficient performance on the part of his trial counsel or 

prejudice. First, appellant argues that his trial counsel was ineffective for inviting the 

admission of testimonial statements that violated the Sixth Amendment’s 
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Confrontation Clause. Specifically, he refers to his trial counsel eliciting from 

Detective Eric Datillo on cross-examination that a confidential informant, Dino 

Barbato, implicated him in the rash of burglaries. (Trial Tr., VIII, 1842, 1848, 1867.) In 

this instance, appellant was not denied his right to confront under the Sixth 

Amendment. The state called Dino Barbato as a witness at trial and he was 

subjected to cross-examination by appellant’s trial counsel. 

{¶25} Second, appellant argues that his trial counsel invited or failed to object 

to the admission of unduly prejudicial, hearsay testimony of bad acts. Appellant 

points to testimony from Matthew Nicholson, the confidential informant who helped 

police conduct the controlled buys, and Barry Stewart, who participated in the 

burglaries along with appellant and his co-defendant, Jamie Kozic. Nicholson testified 

that appellant sold drugs to another person and used drugs himself during one of the 

controlled buys. (Trial Tr., Vol. III, 732, 734.) On cross-examination, appellant’s 

counsel also elicited testimony from Nicholson about appellant’s prior drug abuse and 

attempted theft. (Trial Tr., Vol. III, 794-795.) When Stewart testified, he referenced 

unindicted burglaries that he allegedly committed with appellant in Warren, Ohio and 

Pennsylvania. (Trial Tr., Vol. VII, 1538.) 

{¶26} “Evidence of other crimes, wrongs, or acts is not admissible to prove 

the character of a person in order to show he acted in conformity therewith.” Evid.R. 

404(B). However, that evidence may be admissible to prove “motive, opportunity, 

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” 

Evid.R. 404(B). The list of acceptable reasons for admitting testimony of prior bad 

acts into evidence is non-exhaustive. State v. Melton, 11th Dist. No. 2009-L-078, 

2010-Ohio-1278, at ¶ 78. 

{¶27} It is important to note that the testimony appellant complains of is taken 

out of context. Video and audio recordings of those controlled buys were played for 

the jury. The bulk of Nicholson’s testimony was simply describing to the jury what 

was going on during those controlled buys. That testimony, along with Stewart’s, was 

clearly noncharacter testimony and would have been otherwise admissible to 
-8-

demonstrate motive, opportunity, intent, preparation, plan, knowledge, or identity. 

{¶28} Moreover, the Ohio Supreme Court has observed that “[t]he scope of 

cross-examination falls within the ambit of trial strategy, and debatable trial tactics do 

not establish ineffective assistance of counsel.” State v. Conway, 109 Ohio St.3d 

412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101. 

{¶29} The third area appellant cites as ineffective assistance of counsel 

concerns the trial court’s granting his motion to dismiss count 1 (burglary) pursuant to 

Crim.R. 29. Appellant argues that there was “substantial” testimony presented that a 

burglary occurred and that appellant was involved in the “distribution” of an item 

taken during that burglary. (Trial Tr., Vol. V, 1228-1243; Trial Tr., Vol. VI, 1422-1430.) 

Appellant argues that his trial counsel was ineffective for failing to request an 

instruction for the jury to disregard the evidence that had been presented in support 

of that count. 

{¶30} To the extent that appellant argues that the evidence for count 1 was 

then used by the jury as “other acts” evidence to convict on the other counts, it is 

important to note that this evidence was adduced prior to the dismissal of that count. 

The evidence was not introduced to prejudice the jury, but rather to prove the count 

that was at issue at the time. 

{¶31} Additionally, good reason may have existed why counsel did not 

request a limiting instruction and why the trial court may not have wanted to sua 

sponte give an instruction. Any reminder to the jury about the count 1 evidence, 

beyond the evidence that they were about to consider, may have reinforced that 

other incident and arguably prejudiced them against appellant. 

{¶32} The fourth instance of ineffective assistance of counsel appellant 

alleges concerns his right to a speedy trial. In particular, appellant points to his trial 

counsel’s acquiescence to a continuation of the trial from July 1, 2010 to February 7, 

2011. It is well established that a defendant is bound by the actions of counsel in 

waiving speedy-trial rights by seeking or agreeing to a continuance, even over the 

defendant’s objections. State v. McBreen, 54 Ohio St.2d 315, 276 N.E.2d 593 (1978). 
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Justification for defense counsel’s waiver of their client’s speedy-trial rights include 

time to adequately prepare for trial as well as for conflicts in counsel’s schedule. Id. 

Under the facts and circumstances of this case, the acquiescence of appellant’s 

counsel to the continuance was reasonable and did not amount to ineffective 

assistance of counsel. Appellant made it clear that he wanted to the case against him 

taken to a trial. The case involved multiple counts stemming from a multi-count 

indictment (including a RICO count). Given the extensive and voluminous discovery 

involved, the seventh-month extension was a reasonable amount of time for 

appellant’s counsel to agree to in order to properly prepare for trial. 

{¶33} Accordingly, appellant’s first assignment of error is without merit. 

Sufficiency & Weight of the Evidence

{¶34} Appellant’s second assignment of error states: 

The trial court erred and violated Zoltan Kozic’s rights to due 

process and a fair trial when, in the absence of sufficient evidence and 

against the manifest weight of the evidence, it convicted him of 

trafficking in drugs under R.C. 2925.03(A)(1) and (C)(1)(c). Fifth and 

Fourteenth Amendments, United States Constitution; Sections 10 and 

16, Article I, Ohio Constitution; R.C. 2925.01(D)(1)(d). (September 2, 

2011 Judgment Entry of Sentencing); (October 19, 2011 Amended 

Judgment Entry of Sentencing). 

{¶35} Sufficiency of the evidence is the legal standard applied to determine 

whether the case may go to the jury or whether the evidence is legally sufficient as a 

matter of law to support the jury verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684 

N.E.2d 6680 (1997). In essence, sufficiency is a test of adequacy. State v. 

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Whether the evidence is 

legally sufficient to sustain a verdict is a question of law. Id. In reviewing the record 

for sufficiency, 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 
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essential elements of the crime proven beyond a reasonable doubt. Smith, 80 Ohio 

St.3d at 113, 684 N.E.2d 668. 

{¶36} Alternatively, a weight-of-the-evidence challenge requires an appellate 

court to review the entire record, weigh the evidence and all reasonable inferences, 

and consider the credibility of the witnesses. State v. Thompkins, 78 Ohio St.3d 380, 

387, 678 N.E.2d 541 (1997). In weighing the evidence and the reasonable inferences 

that can be drawn therefrom, if there exists two fairly reasonable views of the 

evidence, the reviewing court cannot simply substitute its judgment for the jury and 

choose the one it finds more persuasive or believable. State v. Gore, 131 Ohio 

App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999). In assessing the credibility of the 

witnesses, the reviewing court is guided by the principle that the credibility of the 

witnesses is primarily the responsibility and province of the jury. State v. DeHass, 10 

Ohio St.2d 230, 227 N.E.2d 212 (1967). This is because the jury is in the best 

position to assess the credibility of a trial witness based on their observations of the 

witnesses’ demeanor, gestures, and voice inflections. Gore, 131 Ohio App.3d at 201, 

722 N.E.2d 125, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 

461 N.E.2d 1273 (1984). In reviewing all of the evidence, a weight-of-the-evidence 

challenge requires the reviewing court to determine if the greater amount of credible 

evidence supported the jury’s finding of guilt. State v. Thompkins, 78 Ohio St.3d 380, 

387, 678 N.E.2d 541 (1997). 

{¶37} Reversal based on a successful weight-of-evidence challenge is 

reserved only for the exceptional case in which the evidence weighed so heavily 

against conviction that the jury clearly must have lost its way, creating a manifest 

miscarriage of justice. Id. Indeed, reversing on weight of the evidence after a jury trial 

is so extreme that it requires the unanimous vote of all three appellate judges rather 

than a mere majority vote. Thompkins, 78 Ohio St.3d at 389, 678 N.E.2d 541, citing 

Section 3(B)(3), Article IV of the Ohio Constitution (noting that the power of the court 

of appeals is limited in order to preserve the jury’s role with respect to issues 

surrounding the credibility of witnesses). 
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{¶38} Under this assignment of error, appellant takes issue with his conviction 

on two counts of drug trafficking (counts 14 and 15), in particular the bulk amount 

element of those charges. Appellant was convicted of two counts of drug trafficking 

with a bulk amount penalty enhancement specification in violation of R.C. 

2925.03(A)(1)(C)(1)(c). 

{¶39} Drug trafficking is committed when a person knowingly sells or offers to 

sell a controlled substance. R.C. 2925.03(A)(1). Oxycodone is a Schedule II 

controlled substance. R.C. 3719.01(C) (defining “controlled substance” as including 

any Schedule II substance); R.C. 3719.41(A)(1)(n) (listing oxycodone as a Schedule 

II substance). 

{¶40} Trafficking in such a substance is a fourth-degree felony unless a 

penalty enhancement provision applies. R.C. 2925.03(C)(1)(a). In particular, at the 

time appellant committed these offenses the Revised Code provided that if the 

amount of the drug involved equaled or exceeded the bulk amount but was less than 

five times the bulk amount, then trafficking was a third-degree felony requiring the 

sentencing court to impose a mandatory prison term, one of the prison terms 

prescribed for a third-degree felony. R.C. 2925.03(C)(1)(c). 

{¶41} The bulk amount of a compound, mixture, preparation or substance that 

is or contains any amount of a schedule II opiate or opium derivative is defined as an 

amount equal to or exceeding twenty grams or five times the maximum daily dose in 

the usual dose range specified in a standard pharmaceutical reference manual. R.C. 

2925.01(D)(1)(d). A standard pharmaceutical reference manual is defined as 

including the current edition, with cumulative changes if any, of any of the following 

reference works: (1) The National Formulary; (2) The United States Pharmacopeia, 

prepared by authority of the United States Pharmacopeial Convention, Inc.; or (3) 

other standard references that are approved by the state board of pharmacy. R.C. 

2925.01(M)(1)-(3). While the definition of bulk amount itself is a question of law, the 

question of whether the amount of a controlled substance possessed or sold by a 

criminal defendant exceeded the bulk amount is a question of fact. State v. 
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Montgomery, 17 Ohio App.3d 258, 260, 479 N.E.2d 904 (1st Dist.1984). 

{¶42} Here, the state established that Oxycontin is oxycodone. Additionally, 

the state proved that appellant sold an informant five 80 milligram tablets of 

Oxycontin on March 25, 2010, and eight 80 milligram tablets on April 1, 2010. The 

state presented testimony from the informant (Trial Tr., Vol. III, 710-738), the 

detectives who supervised the controlled buys (Trial Tr., Vol. III, 625-637; Trial Tr., 

Vol. IV, 889-892; Trial Tr., Vol. VI, 889-892), as well as video and audio recordings of 

the buys (Trial Tr., Vol. III, 624; State’s Exhibits 1, 2). 

{¶43} Appellant’s only argument here concerns whether the state presented 

adequate evidence to establish the applicability of the penalty enhancement 

provision. In other words, appellant argues that the state failed to prove that the 

amount of tablets sold on those two occasions equaled or exceeded the bulk amount 

in order to elevate those counts from fourth-degree to third-degree felonies. 

{¶44} Therefore, the state had the option of proving appellant sold the bulk 

amount by either weight or by reference to the maximum daily dosage. State v. 

Mattox, 13 Ohio App.3d 52, 53, 468 N.E.2d 353 (2d Dist.1983), citing State v. Howell, 

5 Ohio App.3d 92, 449 N.E.2d 523 (5th Dist.1981) (the use of the disjunctive “or” 

between the weight description and the dosage description in R.C. 2925.01 requires 

the state to prove either weight or dosage in determining whether the controlled 

substance was in excess of the bulk amount, but not both). More specifically, for 

drugs such as oxycodone, the Revised Code defines the bulk amount as an amount 

equal to or exceeding (1) twenty grams or (2) five times the maximum daily dose in 

the usual dose range specified in a standard pharmaceutical reference manual. R.C. 

2925.01(D)(1)(d). 

{¶45} The state called two forensic scientists from the Ohio Bureau of 

Criminal Identification and Investigation (BCI) who analyzed the drugs that were 

recovered from the controlled buys that comprised counts 14 and 15 in this case. 

Jennifer Acurio analyzed the drugs from the March 25, 2010 controlled buy (count 

14) and determined that the five 80 milligram tablets contained oxycodone. (Trial Tr., 
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Vol. IV, 844-849.) Barbara DiPietro analyzed the drugs from the April 1, 2010 

controlled buy (count 15) and determined that the eight 80 milligram tablets weighed 

2.1 grams and contained oxycodone. (Trial Tr., Vol. IV, 872-873.) 

{¶46} As for the first way the state could have proven the bulk amount (i.e., 

the weight method), DiPietro testified that the eight 80 milligram oxycodone tablets 

from the April 1, 2010 controlled buy (count 15) weighed 2.1 grams, an amount far 

less than the threshold amount of twenty grams required under R.C. 

2925.01(D)(1)(d). Although Acurio did not testify as to the weight of the five 80 

milligram oxycodone tablets from the March 25, 2010 controlled buy (count 14), since 

there were three less tablets, they presumably did not weigh any more than eight 80 

milligram oxycodone tablets from the April 1, 2010 controlled buy (count 15). Thus, 

the state did not prove the bulk amount based on the twenty gram weight threshold 

method. 

{¶47} The second way to establish bulk amount would have been to introduce 

evidence that the tablets equaled or exceeded five times the maximum daily dose in 

the usual dose range specified in a standard pharmaceutical reference manual. 

Concerning this approach, some appellate courts have held that what constitutes the 

maximum daily dose is a question of fact which must be proved in one of three ways: 

(1) by stipulation, (2) by expert testimony as to what a standard pharmaceutical 

reference manual prescribes, or (3) by a properly proven copy of the manual itself. 

State v. Huber, 187 Ohio App.3d 697, 2010-Ohio-2919, 933 N.E.2d 345, ¶ 8 (2d 

Dist.); State v. Montgomery, 17 Ohio App.3d 258, 479 N.E.2d 904 (1st Dist.1984) 

(maximum-daily-dose amount must be stipulated or proved and cannot be furnished 

to the trier of fact by judicial notice); see also State v. Skorvanek, 182 Ohio App.3d 

615, 2009-Ohio-1709, 914 N.E.2d 418, ¶¶ 7-10 (9th Dist.) (concluding that while an 

expert did testify about the bulk amount, because the expert did not refer to a 

“standard pharmaceutical reference manual,” as the second disjunct of the statutory 

definition of “bulk amount” requires, the state failed to prove the daily maximum dose 

amounts). Other districts have flatly rejected this requirement and held that the trial 
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court can take judicial notice of what amount constitutes the bulk amount by 

reference to a standard pharmaceutical reference manual and instruct the jury 

accordingly. State v. Fisher, 5th Dist. No. 05 CAA 04 020, 2006-Ohio-2201, ¶¶ 13-22; 

State v. Cole, 12th Dist. No. CA2004-01-007, 2005-Ohio-2274, ¶¶ 29-30; see also

State v. Drummond, 3d Dist. No. 16-11-08, 2012-Ohio-1468, ¶ 15. 

{¶48} In response to appellant’s argument under this assignment of error, the 

state cites this court’s decision in State v. Mitchell, 7th Dist. No. 08 JE 5, 2008-Ohio6920, a case which it asserts contained “similar” testimony from an analyst from BCI 

establishing the bulk amount of oxycodone as six 80 milligram tablets. Indeed, in 

Mitchell, the state did present evidence that the bulk amount of oxycodone was six 80 

milligram tablets. 

{¶49} In Mitchell, a forensic scientist explained how the bulk amount is set by 

the Ohio State Board of Pharmacy when they determine based upon dosage how 

much a person can ingest in one day. She specifically testified that the bulk amount 

of 80 milligram Oxycontin tablets is six tablets. She also specified that the daily 

dosage provided by the state pharmacy board is ninety milligrams. She then applied 

the statutory definition in R.C. 2925.01(D)(1)(d) of five times the maximum daily 

dosage to arrive at 450 milligrams, which bulk amount threshold is less than the 480 

milligrams contained in six 80 milligram tablets. 

{¶50} In this case however, unlike in Mitchell, the state never elicited such 

“similar” or any testimony at all concerning the maximum daily dose. Acurio testified 

that one of the tablets constituted a unit dose. (Trial Tr., Vol. IV, 849.) On crossexamination, Acurio testified that an 80 milligram tablet of oxycodone was on the 

higher end level of concentration. (Trial Tr., Vol. IV, 855.) However, at no point did 

she ever talk about the maximum daily dose or the bulk amount. And neither did 

DiPietro. 

{¶51} When the trial court was instructing the jury on the amount 

enhancement, he told the jury that the bulk amount equaled or exceeded six unit 

doses. As indicated, while some appellate districts have allowed this instruction to 
- 15 -

stand even in the absence of the evidence establishing what amount constitutes the 

maximum daily dose, in those cases the trial court had relied on a standard 

pharmaceutical reference manual. In this instance, it is unclear how the trial court 

arrived at its definition of the bulk amount. 

{¶52} Because this case involves the complete absence of any basis for or 

evidence explaining what constituted the maximum daily dose of oxycodone, we are 

not called upon to hold whether the maximum daily dose must be established by 

expert testimony or can be arrived at through judicial notice of a standard 

pharmaceutical reference manual. However, the implication of our analysis of the 

sufficiency of the evidence in Mitchell as it pertained to the maximum daily dose 

would seem to indicate that expert testimony would be the most sound way to 

establish that fact. 

{¶53} In sum, since there was no basis for establishing the maximum daily 

dose in this case, testimonial or otherwise, we conclude that there was insufficient 

evidence to prove the bulk-amount penalty enhancement aspect of appellant’s 

convictions on counts 14 and 15. As indicated, however, the state presented 

sufficient evidence and appellant’s underlying convictions for drug trafficking (absent 

the bulk-amount penalty enhancement) were not against the manifest weight of the 

evidence. “When the evidence shows that a defendant was not guilty of the crime for 

which he was convicted, but was guilty of a lesser degree of that crime or a lesserincluded offense of that crime, we can modify the verdict accordingly, and remand the 

case for resentencing.” State v. McCoy, 10th Dist. No. 07AP-769, 2008-Ohio-3293, 

2008 WL 2588568, ¶ 28. Accord State v. Davis, 1st Dist. No. C-040411, 2006-Ohio4599, 2006 WL 2572089, ¶ 13. Because the state proved that appellant sold less 

than the bulk amount of oxycodone, he was guilty of fourth-degree felony drug 

trafficking. Thus, appellant’s second assignment of error has merit and his 

convictions on count 14 (drug trafficking) and count 15 (drug trafficking) are reversed 

and the case is remanded for the trial court to enter convictions on the lesser 

included offense of fourth-degree felony drug trafficking and to resentence appellant 
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accordingly. 

Enterprise

{¶54} Appellant’s third assignment of error states: 

The trial court erred and violated Zoltan Kozic’s rights to due 

process and a fair trial when, in the absence of sufficient evidence and 

against the manifest weight of the evidence, it convicted him of 

engaging in a pattern of corrupt activity under R.C. 2923.32. Fifth and 

Fourteenth Amendments, United States Constitution; Sections 10 and 

16, Article I, Ohio Constitution. (September 2, 2011 Judgment Entry of 

Sentencing); (October 19, 2011 Amended Judgment Entry of 

Sentencing). 

{¶55} This assignment of error involves the Ohio’s Corrupt Activity Act, R.C. 

2923.31 et seq., patterned after the federal RICO Act. Appellant and his 

codefendants were charged with engaging in a pattern of corrupt activity in violation 

of R.C. 2923.32(A)(1). R.C. 2923.32(A)(1) provides: “No person employed by, or 

associated with, any enterprise shall conduct or participate in, directly or indirectly, 

the affairs of the enterprise through a pattern of corrupt activity * * *.” 

{¶56} Appellant argues that there was insufficient evidence of an “enterprise” 

in this case. Appellant claims there was never sufficient evidence presented at trial to 

establish the existence of an enterprise because it was not demonstrated that there 

was an ongoing organization, formal or informal, that operated as a continuing unit 

and had an organizational structure separate and apart from the pattern of corrupt 

activity. Appellant’s argument implicitly urges us to adopt the requirements for finding 

an enterprise as they have developed under the federal RICO statute, citing United 

States v. Riccobene, 709 F.2d 214 (3rd Cir.1983), and United States v. Bledsoe, 674 

F.2d 647 (8th Cir.1982), when analyzing Ohio’s engaging in a pattern of corrupt 

activity statute. 

{¶57} Riccobene identified three elements that must be proven for finding that 
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an enterprise exists: (1) an ongoing organization, (2) with associates that function as 

a continuing unit, (3) that has a structure separate and apart, or distinct, from the 

racketeering activity. Riccobene at 222-223. See also Bledsoe at 664 (holding 

“enterprise” element requires proof of a structure separate from the racketeering 

activity). 

{¶58} Ohio’s Corrupt Activity Act defines enterprise as follows: 

“Enterprise” includes any individual, sole proprietorship, 

partnership, limited partnership, corporation, trust, union, government 

agency, or other legal entity, or any organization, association, or group 

of persons associated in fact although not a legal entity. “Enterprise” 

includes illicit as well as licit enterprises. 

(Emphasis added.) R.C. 2923.31(C). 

{¶59} Both Riccobene and Bledsoe relied on United States v. Turkette, 452 

U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), in which the United States 

Supreme Court explained enterprise as “an entity, for present purposes a group of 

persons associated together for a common purpose of engaging in a course of 

conduct” that is “proved by evidence of an ongoing organization, formal or informal, 

and by evidence that the various associates function as a continuing unit.” 

{¶60} In Ohio, the Tenth District adopted the Riccobene test in State v. 

Teasley, 10th Dist. Nos. 00AP-1322, 00AP1323, 2002 WL 977278 (May 14, 2002). 

This Court has yet been required to define enterprise for purposes of Ohio’s 

engaging in a pattern of corrupt activity statute. 

{¶61} However, in 2009, it is important to note that the United States 

Supreme Court decided Boyle v. United States, 556 U.S. 938, 129 S.Ct. 2237, 173 

L.Ed.2d 1265 (2009). The Boyle decision effectively eliminated the third factor set 

forth in Riccobene. The Third Circuit, which had decided Riccobene, acknowledged 

in United State v. Bergrin, 650 F.3d 257 (3rd Cir.2011), that Riccobene had been 

overruled by the United States Supreme Court’s decision in Boyle. 
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{¶62} In Boyle, the Court added that “an association-in-fact enterprise must 

have at least three structural features: a purpose, relationships among those 

associated with the enterprise, and longevity sufficient to permit these associates to 

pursue the enterprise’s purpose.” Boyle at 939. The Court effectively rejected the 

third factor of the Riccobene test and also listed a number of structural elements that 

the government need not prove to establish an “enterprise”: 

We see no basis in the language of RICO for the structural 

requirements that petitioner asks us to recognize. As we said in 

Turkette, an association-in-fact enterprise is simply a continuing unit 

that functions with a common purpose. Such a group need not have a 

hierarchical structure or a “chain of command”; decisions may be made 

on an ad hoc basis and by any number of methods—by majority vote, 

consensus, a show of strength, etc. Members of the group need not 

have fixed roles; different members may perform different roles at 

different times. The group need not have a name, regular meetings, 

dues, established rules and regulations, disciplinary procedures, or 

induction or initiation ceremonies. While the group must function as a 

continuing unit and remain in existence long enough to pursue a course 

of conduct, nothing in RICO exempts an enterprise whose associates 

engage in spurts of activity punctuated by periods of quiescence. Nor is 

the statute limited to groups whose crimes are sophisticated, diverse, 

complex, or unique; for example, a group that does nothing but engage 

in extortion through old-fashioned, unsophisticated, and brutal means 

may fall squarely within the statute’s reach. 

Boyle, 556 U.S. at 948, 129 S.Ct. 2237, 173 L.Ed.2d 1265. 

{¶63} Given that the definition provided by the Court in Boyle is more in 

agreement with Ohio’s version of the federal RICO statute and effectively eliminates 

the third factor set forth in Riccobene, we decline to incorporate that factor into Ohio’s 
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definition of enterprise. Additionally, other Ohio appellate court districts which have 

had occasion to address the matter have adopted the definition provided by the Court 

in Boyle. State v. Dodson, 12th Dist. No. CA2010-08-191, 2011-Ohio-6222; State v. 

Perry, 11th Dist. No. 2011-L-125, 2012-Ohio-4888. 

{¶64} Applying the test outlined in Boyle, there was sufficient evidence 

presented to support the existence of an enterprise. There was testimony that 

appellant and his codefendant, Jamie Kozic, participated in numerous burglaries 

together. They rode together in the same vehicle to different homes. They broke into 

the homes together. They removed items from the home together and took them 

back to the same vehicles. They each later sold the items at the same pawn shop. 

And the burglaries occurred over the span of months from late 2009 to early 2010. 

{¶65} In sum, the evidence presented five instances of the enterprise 

(appellant and his codefendant, Jamie Kozic) engaging in distinct criminal acts 

(burglary) over a period of several months. Appellant was directly involved in every 

incident of that corrupt activity. 

{¶66} Accordingly, appellant’s third assignment of error is without merit. 

Joinder

{¶67} Appellant’s fourth assignment of error states: 

The trial court violated Zoltan Kozic’s due process rights and 

abused its discretion, when it failed to sever Mr. Kozic’s trial from that of 

his co-defendant. Fifth and Fourteenth Amendments, United States 

Constitution, and Section 10, Article I, Ohio Constitution. (June 17, 

2011 Judgment Entry); (Trial Transcript, at 77, 107-108). 

{¶68} An appellate court will only reverse a trial court’s denial of severance if 

the trial court abused its discretion. State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio6391, 819 N.E.2d 215, ¶ 33. 

{¶69} If it appears that a defendant is prejudiced by the joinder of offenses or 

defendants, the trial court may grant a severance. Crim.R. 14. But the burden is on 
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the defendant to prove prejudice and to prove that the trial court abused its discretion 

in denying severance. State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 

N.E2d 959, ¶ 29. 

{¶70} “[J]oinder of defendants is proper so long as all defendants participated 

in the same series of transactions leading to the charges even though not all 

defendants participated in every act. * * * Not all defendants need be charged in each 

count * * * nor would differing levels of culpability among defendants necessarily 

justify severance.” State v. Bundy, 7th Dist. No. 02 CA 211, 2005-Ohio-3310, ¶ 53, 

quoting State v. Schiebel, 55 Ohio St.3d 71, 88-89, 564 N.E.2d 54 (1990). 

{¶71} “Joinder of defendants and the avoidance of multiple trials is favored in 

the law for many reasons. Joinder conserves judicial and prosecutorial time, lessens 

the not inconsiderable expenses of multiple trials, diminishes inconvenience to 

witnesses, and minimizes the possibility of incongruous results in successive trials 

before different juries.” State v. Thomas, 61 Ohio St.2d 223, 225, 400 N.E.2d 401 

(1980). “The test is ‘whether a joint trial is so manifestly prejudicial that the trial judge 

is required to exercise his or her discretion in only one way – by severing the trial. * * 

* A defendant must show clear, manifest and undue prejudice and violation of a 

substantive right resulting from failure to sever. * * *.’” Schiebel at 89, 564 N.E.2d 54, 

quoting United States v. Castro, 887 F.2d 988, 996 (9th Cir.1989). 

{¶72} The trial court did not abuse its discretion when it denied appellant’s 

motion for severance of defendants. Six of the nine burglary counts involved both 

appellant and his codefendant Jamie Kozic. But, as Schiebel states, not all 

defendants need to be charged with each count to join defendants for trial. Id. at 89, 

564 N.E.2d 54. Since each of the counts in the indictment arose from the same 

series of transactions, the trial court did not abuse its discretion when it allowed a 

joint trial. 

{¶73} Furthermore, the trial court instructed the jurors that they should 

consider the evidence against each of the defendants separately. And when 

discussing the law concerning each offense, it specified the defendants charged with 
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those offenses. The jury is presumed to have followed the trial court’s limiting 

instructions. State v. Raglin, 83 Ohio St.3d 253, 264, 699 N.E.2d 482 (1998). Also, 

appellant has not attempted to argue that he would have defended his case 

differently if the other defendants had not been joined. See State v. Johnson, 88 Ohio 

St.3d 95, 110, 723 N.E.2d 1054 (2000); State v. Franklin, 62 Ohio St.3d 118, 123, 

580 N.E.2d 1 (1991); State v. Stephens, 4th Dist. No. 98CA41, 1999 WL 1285879 

(Dec. 23, 1999). 

{¶74} Turning to the joinder of offenses, Crim.R. 8(A) provides that two or 

more offenses may be charged in the same indictment if the offenses are (1) of the 

same or similar character, or (2) are based on the same act or transaction, or (3) are 

based on two or more acts or transactions connected together or constituting parts of 

a common scheme or plan, or (4) are part of a course of criminal conduct. “The law 

favors joining multiple offenses in a single trial under Crim.R. 8(A) if the offenses 

charged ‘are of the same or similar character.’” State v. Lott, 51 Ohio St.3d 160, 163, 

555 N.E.2d 293 (1990), quoting State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288 

(1981). 

{¶75} 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, 

600 N.E.2d 661 (1992). 

{¶76} When simple and distinct evidence exists, an accused is not prejudiced 

by the joinder of multiple offenses in a single trial, regardless of whether the evidence 

is admissible as other-acts evidence. State v. Coley, 93 Ohio St.3d 253, 260, 754 

N.E.2d 1129 (2001). 

{¶77} In this case, the trial court did not abuse its discretion in denying 

severance of the offenses. All of the offenses with which appellant was charged with 

were not necessarily of a same or similar character. However, all of the burglaries 

and drug sales clearly constituted (1) two or more acts or transactions connected 
- 22 -

together or constituting parts of a common scheme or plan, or (2) were part of a 

course of criminal conduct. Crim.R. 8(A). 

{¶78} Here, the evidence of the other crimes would likely not have been 

admissible if the counts were severed. The crimes each had their own distinct victimwitnesses and it was unlikely that the victim-witnesses would testify in a case that did 

not have to do with the offense against them. 

{¶79} Nonetheless, the evidence of each crime was simple and distinct. Each 

of the witnesses who had been a victim of one of the alleged burglaries simply 

testified regarding that particular offense. None of their testimonies were very long or 

involved. 

{¶80} Moreover, the jury was able to separate the evidence as to each of the 

charged offenses. The jury found appellant’s codefendant Jamie Kozic guilty of some 

counts but not others. The jury’s verdicts demonstrate that they were able to consider 

the evidence independently as it pertained to each individual charge and did not lump 

the charges together. 

{¶81} Accordingly, appellant’s fourth assignment of error is without merit. 

Speedy Trial

{¶82} Appellant’s fifth assignment of error states: 

The trial court violated Zoltan Kozic’s speedy-trial rights and 

abused its discretion, when it failed to grant Mr. Kozic’s motion to 

dismiss. Sixth Amendment, United States Constitution, and Section 10, 

Article I, Ohio Constitution; R.C. 2945.71; R.C. 2945.72; R.C. 2945.73. 

(Trial Transcript. at 107). 

{¶83} Ohio recognizes both a constitutional and a statutory right to a speedy 

trial. State v. King, 70 Ohio St.3d 158, 161, 637 N.E.2d 903 (1994); see also Sixth 

Amendment, United States Constitution; Section 10, Article I, Ohio Constitution. The 

Sixth Amendment of the U.S. Constitution provides that, “[i]n all criminal 

prosecutions, the accused shall enjoy the right to a speedy and public trial.” The 
- 23 -

General Assembly has embodied this fundamental right in the provisions of R.C. 

2945.71 to 2945.73. R.C. 2945.71; R.C. 2945.72; R.C. 2945.73. Thus, the Ohio 

Supreme Court has found the statutory speedy-trial provisions set forth in R.C. 

2945.71 to be coextensive with constitutional speedy-trial provisions. State v. 

O’Brien, 34 Ohio St.3d 7, 9, 516 N.E.2d 218 (1987). 

{¶84} R.C. 2945.71 provides the timeframe for a defendant’s right to a speedy 

trial based on the level of offense. As indicated earlier, appellant was ultimately 

indicted on seventeen felony counts. According to the Ohio Revised Code, “a person 

against whom a charge of felony is pending shall be brought to trial within two 

hundred seventy days after his arrest.” R.C. 2945.71(C)(2). However, each day the 

defendant spends in jail solely on the pending criminal charge counts as three days. 

R.C. 2945.71(E). 

{¶85} R.C. 2945.72 lists a number of tolling events that may extend the period 

of time in which the prosecution must bring a defendant to trial. R.C. 2945.72(A)-(I). If 

the state fails to meet the statutory time limits, then the trial court must discharge the 

defendant. R.C. 2945.73. The Ohio Supreme Court has “imposed upon the 

prosecution and the trial courts the mandatory duty of complying” with the speedytrial statutes. State v. Singer, 50 Ohio St.2d 103, 105, 362 N.E.2d 1216 (1977). As 

such, the speedy-trial provisions are strictly construed against the state. Brecksville v. 

Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d 706 (1996); Singer at 105, 362 N.E.2d 1216. 

{¶86} Consequently, the role of the reviewing court is to count the days of 

delay chargeable to either side and determine whether the case was tried within the 

time limits set forth in the Revised Code. State v. Hart, 7th Dist. No. 06 CO 62, 2007-

Ohio-3404, at ¶ 8-9, citing State v. High, 143 Ohio App.3d 232, 757 N.E.2d 1176 (7th 

Dist.2001). Moreover, this duty is not affected by whether the state raised certain 

filings as tolling events. State v. Williams, 7th Dist. No. 07 MA 162, 2008-Ohio-1532, 

at ¶ 38. 

{¶87} Upon demonstrating that the statutory time limit has expired, the 

defendant has established a prima facie case for violation of his speedy-trial rights, 
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thereby warranting dismissal. State v. Butcher, 27 Ohio St.3d 28, 30-31, 500 N.E.2d 

1368 (1986). If the defendant can make this showing, the state then has the burden 

to establish any exceptions that may have suspended the speedy-trial clock. Butcher

at 31, 500 N.E.2d 1368. As such, the resolution of appellant’s assigned error requires 

scrutinizing the record to ascertain the tolling potential of each filing event. 

{¶88} To begin, appellant was indicted on May 20, 2010. Normally, the 

speedy-trial clock begins to run on the day following the date of arrest or service of 

the summons or indictment. R.C. 2945.71(C)(2); State v. Catlin, 7th Dist. No. 

06BE21, 2006-Ohio-6246, ¶ 12. However, when appellant was indicted, he was 

already in jail for another case. In Mahoning County Common Pleas Court Case No. 

2009CR461, appellant had pleaded guilty to attempted drug possession in violation 

of R.C. 2925.11(A)(C)(1)(a) and R.C. 2923.02(A), a first-degree misdemeanor, and, 

on July 16, 2009, was sentenced to a thirteen-month term of community control. On 

April 20, 2010, he was held without bond following his stipulation to probable cause 

that he had violated the terms of his community control. On May 21, 2010, the day 

after his indictment in this case, the trial court in that case sentenced appellant to 120 

days in jail for violating the terms of his community control, with credit for 37 days 

already served. Thus, appellant was being held in jail for the next 83 days or until 

August 12, 2010, for his community-control violation in that case. 

{¶89} It is important to note that the triple-count provision applies only when 

the defendant is being held in jail solely on the pending charge. State v. MacDonald, 

48 Ohio St.2d 66, 357 N.E.2d 40 (1976), paragraph one of the syllabus (construing 

former R.C. 2945.71(D), now (E)). Therefore, the triple-count provision does not 

apply when a defendant is being held in custody pursuant to other charges. Id. Nor 

does it apply when the accused is being held on a parole- or probation-violation 

holder. State v. Brown, 64 Ohio St.3d 476, 479, 597 N.E.2d 97 (1992) (paroleviolation holder); State v. Martin, 56 Ohio St.2d 207, 211, 383 N.E.2d 585 (1978) 

(probation-violation holder). In appellant’s case then, while the speedy-trial clock 

began to run on May 21, 2010, the day after he was indicted, each of the 83 days 
- 25 -

that elapsed between then and when he was being held solely on the charges in this 

case counted only as one day (tolling events aside). Thereafter, the triple-count 

provision applied as he remained in jail on this case until his trial on August 1, 2011. 

{¶90} Appellant’s speedy-trial clock was tolled early at 104 days when he filed 

for discovery and a motion for a bill of particulars on May 27, 2010 (applying the 

triple-count provision to the 7 days that elapsed between May 21, 2010, and May 27, 

2010 plus the 83 days that had already accrued from May 21, 2010, until August 12, 

2010). 

{¶91} The next and major tolling event occurred on July 1, 2010, at a pretrial 

hearing, where the parties agreed that the first available trial date was February 7, 

2011. The entry specifically states, “Speedy trial tolled until this time.” It is well 

established that any period of delay “made or joined in by appellant” may toll the 

speedy-trial clock. State v. Barbour, 10th Dist. No. 07AP-841, 2008-Ohio-2291, at ¶ 

16-18. “When the parties agree to a continuance, even if it is not on the motion of the 

defendant, the continuance is presumptively reasonable and there is no need to 

explain the reason for the continuance on the record.” State v. Freeman, 7th Dist. No. 

08 MA 81, 2009-Ohio-3052, at ¶ 50 (overruled on other grounds); see also State v. 

Rupp, 7th Dist. No. 05MA166, 2007-Ohio-1561, at ¶ 108. Additionally, it is wellsettled that a defendant’s speedy-trial right may be waived by defense counsel for 

extensions to prepare for trial, as well as conflicts in defense counsel’s schedule. 

State v. McBreen, 54 Ohio St.2d 315, 376 N.E.2d 593, (1978). That waiver applies 

even if it is made without the defendant’s consent. State v. Stanley, 7th Dist. No. 03 

MA 42, 2004-Ohio-6801, ¶ 30, citing McBreen, 54 Ohio St.2d at 320. Thus, as of the 

day before that pretrial hearing, June 30, 2010, the speedy-trial clock remained tolled 

at 104 days. 

{¶92} Meanwhile (before the scheduled trial date of February 7, 2011), 

appellant filed some motions which could be construed as serving as an additional 

basis to toll the speedy-trial clock. On August 17, 2010, appellant filed a motion to 

amend bond. On November 23, 2010, appellant filed a second request for a bill of 
- 26 -

particulars and second motion to amend bond. 

{¶93} Following a motion filed by his co-defendant, Jennifer Kozic, appellant 

agreed to a continuance of the trial from February 7, 2011, until February 28, 2011. 

Due to a deterioration in the relationship between appellant and his court-appointed 

counsel, the court appointed appellant new counsel which necessitated a further 

delay. At a March 4, 2011 status conference, the parties agreed to a continuance of 

the trial until August 1, 2011, the date on which the trial commenced. Therefore, 

appellant’s speedy-trial clock was tolled from July 1, 2010 until August 1, 2011, the 

first day of trial. Since only 104 of the 270 days of the speedy-trial clock had elapsed, 

appellant was brought to trial within time. 

{¶94} Accordingly, appellant’s fifth assignment of error is without merit. 

{¶95} In sum, appellant’s first, third, fourth, and fifth assignments of error are 

without merit and are overruled. Appellant’s second assignment of error is found to 

be with merit and is sustained. The judgment of the trial court is affirmed in part and 

is reversed in part. Appellant’s convictions on count 14 (drug trafficking) and count 15 

(drug trafficking) are reversed and the case remanded for the trial court to enter 

convictions on the lesser included offense of fourth-degree felony drug trafficking and 

to resentence appellant accordingly. The remainder of appellant’s convictions and 

sentences are affirmed. 

Vukovich, J., concurs. 

DeGenaro, P.J., concurs.