[Cite as State v. Ferguson, 2011-Ohio-4285.]

 IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO 

STATE OF OHIO : 

Plaintiff-Appellee : C.A. CASE NO. 08CA0050 

vs. : T.C. CASE NO. 07CR1011 

JAMES FERGUSON : (Criminal Appeal from 

 Common Pleas Court) 

Defendant-Appellant : 

 . . . . . . . . . 

 O P I N I O N

 Rendered on the 26th day of August, 2011. 

 . . . . . . . . . 

David W. Phillips, Atty. Reg. No. 0019966, Clark County Special 

Prosecutor for the State of Ohio, Union County Justice Center, 

221 West Fifth Street, Marysville, OH 43040 

Attorney for Plaintiff-Appellee 

David R. Miles, Atty. Reg. No. 0013841, 125 West Main Street, Suite 

201, Fairborn, OH 45324 

Attorney for Defendant-Appellant 

 . . . . . . . . . 

GRADY, J.: 

{¶ 1} Defendant, James Ferguson, appeals from his conviction 

and sentence for child endangering, permitting child abuse, and 

felonious assault. 

{¶ 2} Defendant and his wife, Vonda Ferguson, adopted six 
2

children: Sherita, Jermaine, Joseph, Julius, Valnita, and Vivian. 

 The family lived in Clark County from 2000 until 2004, when they 

moved to Union County. In November 2004, Vonda Ferguson, while 

talking on the phone with a Union County social worker, threatened 

to stab one of the children. An investigation ensued, following 

which the children were removed from the Ferguson home. The State 

sought permanent custody of the children. In 2005, the Fergusons 

relinquished custody of the children. 

{¶ 3} In August 2006, Defendant James Ferguson was indicted 

in Union County on thirty charges relating to the abuse of his 

children. That case was dismissed by the State in March 2007. 

On October 16, 2007, Defendant was indicted by the Clark County 

grand jury on the same charges: twenty counts of endangering 

children, R.C. 2919.22(B), five counts of permitting child abuse, 

R.C. 2903.15(A), and five counts of felonious assault, R.C. 

2903.11(A)(1). The matter was tried before a jury in April 2008, 

and Defendant was found guilty of seventeen counts of endangering 

children, five counts of permitting child abuse, and three counts 

of felonious assault. The trial court sentenced Defendant to 

prison terms totaling sixty-five years. 

{¶ 4} Defendant timely appealed to this court from his 

conviction and sentence. 

Facts
3

{¶ 5} The children testified at trial regarding the abuse they 

suffered. Joseph testified that Defendant beat him with a “Honda 

belt,” a white belt Defendant wore to work at the Honda 

manufacturing plant in Marysville, an extension cord, and a 

duct-taped wooden paddle. Defendant also held Joseph under water, 

pushed him off a roof, starved him for days at a time, and duct-taped 

him to a chair. The abuse began when Joseph was seven or eight 

and the family lived in Clark County. Defendant would beat Joseph 

for five to ten minutes, four to five times per week. Defendant 

held the belt in both hands and hit Joseph with a lot of force. 

 Joseph bled a lot and has scars on his buttocks, legs, and back. 

 If Joseph cried out, socks would be stuffed in his mouth to silence 

him. 

{¶ 6} Defendant was aware that his wife, Vonda Ferguson, had 

stabbed Joseph with a pen and burned him with an iron. Defendant 

threatened to kill Joseph if he told anyone about the abuse. Joseph 

had to wear soiled underwear on his head and eat the excrement 

if he soiled himself. He also had to stand against a wall for 

prolonged periods of time, even overnight. 

{¶ 7} Valnita testified about being beaten with a duct-taped 

stick and a white Honda belt. She further testified that all of 

the children, except the baby Vivian, were beaten with the belt. 

 During the beatings by Defendant, Vonda Ferguson would laugh. 
4

Defendant kicked the children with his steel-toed work boots, and 

struck Valnita with a hammer, smashing one of her fingers. Valnita 

had welts, bruises, scars, and scabs on her back. Valnita was 

responsible for caring for Vivian. If Vivian woke up Defendant 

or his wife during the night, Valnita would be required to stand 

against a wall overnight, or Defendant would beat her. Valnita 

testified about being burned by a curling iron. 

{¶ 8} Julius testified that he was beaten and hit a lot for 

minor things. He was struck with a belt or a stick, and had marks 

on the back of his thighs and buttocks. 

{¶ 9} Sherita testified that she was duct-taped to a table and 

beaten with a bat, a belt, and a stick by Defendant. She was beaten 

so hard that she bled through her panties and could hardly walk. 

 She has scars on her legs, buttocks, and back. Sherita was forced 

to put soiled garments in her mouth, and Vonda Ferguson struck 

her toes and fingers with a hammer hard enough that her nails would 

turn black and fall off. The children had to stand against a wall 

for hours. Sherita would steal food because she was hungry. 

{¶ 10} Jermaine testified that the atmosphere in the Ferguson 

home was warlike, and a lot of violence was inflicted on the 

children. Jermaine was beaten on his bare buttocks with a 

duct-taped stick for up to ten minutes at a time, and as a result 

he has scars. Defendant kicked and punched Jermaine, and forced 
5

him to stand against a wall, sometimes overnight. Jermaine lied 

for his parents because things would get worse for the other 

children if he told about the abuse. Jermaine indicated that he 

and the other children were beaten with the Honda belt and 

duct-taped. Jermaine did the laundry for the family and he 

testified that everybody bled. He found scabs and blood in the 

children’s underwear. 

{¶ 11} Examinations of Jermaine, Valnita, and Joseph by Dr. 

Applegate and Dr. Scribano revealed scarring on the children’s 

thighs, backs, and buttocks that was consistent with physical 

abuse. Burn marks were observed on Valnita and Joseph, and a stab 

wound was found on Joseph. 

{¶ 12} All of the abused children, except Sherita, were examined 

by a psychologist, Dr. Jolie Brahms. Jermaine was very damaged 

by the abuse, Julius was suicidal as a result of severe depression, 

and Valnita indicated that she needed counseling to adapt to a 

family. Dr. Brahms found that “there was no Joseph.” 

{¶ 13} Early in the investigation of the Fergusons’ treatment 

of their children, Defendant was interviewed by Union County 

Sheriff’s Detective Jon Kleiber. The interview took place at 

Defendant’s place of employment, Honda of America, and Defendant 

was not in custody. Defendant admitted whipping the children with 

his white Honda belt until they bled. Defendant also admitted 
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hitting the children with a duct-taped stick, which left welts 

and bruises on them. Defendant indicated that beating one or more 

of the children was a daily activity. Defendant admitted that 

the children were beaten so frequently that their skin did not 

have time to heal between the beatings. Defendant hung some of 

the children from a second story bannister to make them afraid, 

and he admitted kicking Jermaine in the chest or stomach. He put 

soiled washrags in Sherita’s and Jermaine’s mouths. Defendant 

admitted that his wife, Vonda, ordered him to beat the children 

until they bled, and he would then continue to beat the children. 

 Vonda Ferguson would use make-up to cover the children’s scars 

and injuries so she did not get caught by the local authorities, 

teachers, or school officials. 

{¶ 14} Defendant’s defense at trial was that the children’s 

allegations of abuse were grossly exaggerated and a contrived 

attempt to escape a disciplined home, and that the allegations 

were induced by leading questions asked by investigators. 

FIRST ASSIGNMENT OF ERROR

{¶ 15} “THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTION 

TO AMEND FIFTEEN CHILD ENDANGERING COUNTS OF THE INDICTMENT DURING 

THE TRIAL.” 

{¶ 16} During the trial the Stated filed a motion to amend 

fifteen of the twenty counts of endangering children to include 
7

the culpable mental state of recklessness, which was inadvertently 

omitted from the indictment. Defendant objected, and requested 

a continuance of the trial and to discharge the jury pursuant to 

Crim.R. 7(D). The trial court permitted the amendment and denied 

Defendant’s request for a continuance or discharge of the jury. 

 Relying upon State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624 

(Colon I), Defendant now argues that the failure to include an 

essential element of the child endangering charges, the culpable 

mental state of recklessness, is a fatal defect that cannot be 

cured by amendment of the indictment, and that the trial court 

erred in permitting the State to amend the indictment to add the 

omitted culpable mental state. 

{¶ 17} Crim.R. 7(D) provides that the court may at any time 

before, during, or after trial amend the indictment with respect 

to any defect or omission, provided no change is made in the name 

or identity of the crime charged. In State v. O’Brien (1987), 

30 Ohio St.3d 122, the Ohio Supreme Court held that the amendment 

of the indictment to include the culpable mental state of 

recklessness did not change the name or identity of the crime of 

endangering children, nor did it change the penalty or the degree 

of the offense. Accordingly, the amendment made in the present 

case was proper per Crim.R. 7(D). Id., at 126. 

{¶ 18} In State v. Hamilton, Montgomery App. No. 22895, 
8

2009-Ohio-4602, we concluded that Colon I implictly overruled 

O’Brien. Id., at ¶17. After our decision in Hamilton, and the 

Supreme Court’s decision in Colon I, the Ohio Supreme Court on 

March 25, 2010, decided State v. Pepka, 125 Ohio St.3d 124, 

2010-Ohio-1045, wherein it held that an amendment to an indictment 

for endangering children that added language that the victim 

suffered serious physical harm was proper per Crim.R. 7(D). The 

Supreme Court cited O’Brien with approval, stating that as long 

as the State complies with Crim.R. 7(D), it may cure a defective 

indictment by amendment, even if the original indictment omits 

an essential element of the offense with which Defendant is charged. 

Pepka, at ¶15. 

{¶ 19} In light of the Supreme Court’s approval of O’Brien in 

Pepka, a decision released after Colon I and II, and our decision 

in Hamilton, we conclude that the holding in O’Brien regarding 

the amendment of indictments remains good law. See also State 

v. Rice, Hamilton App. No. C-080444, 2009-Ohio-1080. Under O’Brien, 

an amendment to include an omitted essential element of the offense 

is proper if the name or the identity of the crime is not changed, 

and the accused has not been misled or prejudiced by the omission 

of the element from the indictment. O’Brien, at paragraph two 

of the syllabus. That is the case here. 

{¶ 20} Defendant states in conclusory fashion that he was misled 
9

and prejudiced by the permitted amendment. Defendant, however, 

offers no explanation of how or why he was prejudiced. He does 

not claim that he would have defended the case any differently 

or otherwise have altered his trial strategy. Neither does 

Defendant claim he was surprised. In that regard, we note that 

the first count of child endangerment pertaining to each child, 

counts one, five, nine, thirteen and seventeen, did in fact include 

the culpable mental state of recklessness. That culpable mental 

state was inadvertently omitted from the remaining counts of child 

endangering pertaining to each child. Defendant had adequate 

prior notice and was fairly informed about the elements of the 

charge against which he must defend, which is the purpose of an 

indictment. Pepka. The amendment cured any error resulting from 

the further omissions. 

{¶ 21} Because this record does not demonstrate that Defendant 

was misled or prejudiced by the omission of the mens rea element 

from some, but not all, of the child endangering counts, or by 

the permitted amendment, the amendment to include that omitted 

essential element was proper, and Defendant was not entitled to 

a continuance or discharge of the jury. Pepka; O’Brien; Crim.R. 

7(D). 

{¶ 22} Defendant’s first assignment of error is overruled. 
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SECOND ASSIGNMENT OF ERROR

{¶ 23} “APPELLANT’S FIVE CONVICTIONS FOR PERMITTING CHILD ABUSE 

SHALL BE REVERSED BECAUSE THE TRIAL COURT LACKED JURISDICTION.” 

{¶ 24} Defendant argues that because the indictment failed to 

include a culpable mental state for the permitting child abuse 

charges, it failed to charge an offense and accordingly the trial 

court lacked subject matter jurisdiction over those offenses. 

Therefore, Defendant’s convictions for those offenses must be 

reversed. We disagree. 

{¶ 25} R.C. 2903.15(A) sets forth the offense of permitting 

child abuse as follows: 

{¶ 26} “No parent, guardian, custodian, or person having 

custody of a child under eighteen years of age or of a mentally 

or physically handicapped child under twenty-one years of age shall 

cause serious physical harm to the child, or the death of the child, 

as a proximate result of permitting the child to be abused, to 

be tortured, to be administered corporal punishment or other 

physical disciplinary measure, or to be physically restrained in 

a cruel manner or for a prolonged period.” 

{¶ 27} R.C. 2903.15(A) is silent as to any culpable mental 

state. Furthermore, that provision does not plainly indicate a 

purpose to impose strict liability. In that circumstance, 

recklessness is the default culpable mental state that applies. 
11

 R.C. 2901.21(B). We note that the Ohio Jury Instruction Committee 

states that recklessness is the appropriate culpable mental state 

that applies to permitting child abuse as a result of the 

application of R.C. 2901.21(B). See Ohio Jury Instructions, §CR 

503.15, and the Comment thereto. We agree. See also State v. 

McGee (1997), 79 Ohio St. 3d 193, interpreting child endangering 

in violation of R.C. 2919.22(A). 

{¶ 28} Even though the indictment omitted the mens rea element 

of recklessness from the permitting child abuse charges, this is 

not the rare case where that error permeated the entire trial and 

resulted in multiple errors, resulting in a structural error, 

rather than a plain error, analysis. State v. Colon, 119 Ohio 

St.3d 204, 2008-Ohio-3749 (Colon II). The prosecutor argued to 

the jury that recklessness was required for the permitting child 

abuse charges. Even more importantly, the trial court instructed 

the jury on the culpable mental state of recklessness as it applies 

to permitting child abuse in accordance with Ohio Jury Instructions 

§CR 503.15. With respect to each count of permitting child abuse, 

the court instructed the jury that they must find that Defendant 

recklessly permitted the abuse. The omission of the mens rea 

element from an indictment does not require reversal where, as 

here, the trial court properly instructs the jury. State v. 

Lester, 123 Ohio St.3d 396, 2009-Ohio-4225, at ¶16; Colon II. 
12

We cannot say that but for the failure of the indictment to specify 

that Defendant acted recklessly in permitting his children to be 

abused, he would have been acquitted of those charges. No plain 

error is demonstrated. State v. Long (1978), 53 Ohio St.2d 91. 

{¶ 29} Defendant’s second assignment of error is overruled. 

THIRD ASSIGNMENT OF ERROR

{¶ 30} “APPELLANT’S ENTIRE INDICTMENT IS VOID DUE TO THE 

IMPROPER APPOINTMENT OF A SPECIAL PROSECUTOR.” 

{¶ 31} The prosecution of this case in Clark County was 

conducted by Union County Prosecuting Attorney David Phillips, 

several of his assistant prosecuting attorneys, and assistant Ohio 

Attorney General Chris Wagner. Defendant argues that his 

indictment is void due to the improper appointment of a special 

prosecutor. Defendant cites no authority to support that claim. 

{¶ 32} At the outset we note that Defendant’s claim was not 

raised in the trial court below. Accordingly, Defendant has waived 

all but plain error. Plain error does not exist unless it can 

be said that but for the error, the outcome of the trial would 

clearly have been different. State v. Long, supra. 

{¶ 33} Objections based upon defects in the institution of the 

prosecution, such as this, must be raised by motion prior to trial 

or they are waived. Crim.R. 12(C)(1), (H). In any event, the 

court of common pleas has broad discretion to appoint counsel to 
13

assist the prosecuting attorney in a pending criminal case whenever 

it is of the opinion that the public interest so requires. State 

ex rel. Williams v. Zaleski (1984), 12 Ohio St.3d 109; R.C. 2941.63. 

 

{¶ 34} At the request of the Clark County Prosecuting Attorney, 

and pursuant to R.C. 2941.63, the Clark County Common Pleas Court 

appointed special prosecutors to handle this matter, finding the 

request for a special prosecutor to be appropriate. No hearing 

into the appointment of a special prosecutor was required. 

Zaleski. Defendant does not even allege, much less demonstrate, 

how he was prejudiced by the appointment of a special prosecutor. 

 The prejudice, if there was any, was waived by Defendant’s failure 

to timely object. No plain error has been demonstrated. 

{¶ 35} Defendant’s third assignment of error is overruled. 

FOURTH ASSIGNMENT OF ERROR

{¶ 36} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION 

TO SUPPRESS STATEMENTS.” 

{¶ 37} Defendant argues that the trial court erred by overruling 

his motion to suppress statements he made to police. 

{¶ 38} During the previous criminal proceedings against 

Defendant in Union County, on the same charges that he abused his 

children, Defendant filed a motion to suppress statements he made 

to Union County Sheriff’s Detective Jon Kleiber during an interview 
14

at Defendant’s place of employment on April 18, 2005. A hearing 

was held on September 11, 2006. On September 27, 2006, the trial 

court overruled Defendant’s motion to suppress. The court found 

that Defendant was not in custody when he made the statements, 

that in any event Defendant was properly advised of his Miranda

rights, and that Defendant’s statements were voluntary. On March 

23, 2007, the trial court granted the State’s request to dismiss 

the case against Defendant without prejudice. 

{¶ 39} After criminal proceedings were subsequently filed 

against Defendant in Clark County, Defendant filed the same motion 

to suppress his oral statements he previously filed in the Union 

County case. The trial court held a hearing on February 20, 2008, 

at which no witnesses testified. The court instead heard the oral 

arguments of counsel. On April 10, 2008, the trial court overruled 

Defendant’s motion to suppress his statements. 

{¶ 40} The State argues that the doctrine of res judicata bars 

relitigation of the motion to suppress Defendant’s statements that 

Defendant previously litigated in the Union County proceedings. 

 We disagree. Res Judicata bars all subsequent actions based on 

any claim arising out of a transaction or occurrence that was the 

subject matter of a previous action in which a valid, final judgment 

was entered. Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379. 

The judgment of the Union County Common Pleas Court overruling 
15

Defendant’s motion to suppress his statements was interlocutory, 

not final, and no final judgment on the charges in that indictment 

was entered by the Union County court, which instead dismissed 

those charges without prejudice. 

{¶ 41} In arguing that the trial court erred in overruling his 

motion to suppress his statements, Defendant claims that he was 

in custody at the time he gave his statements to police, and that 

his statements were not voluntary. However, whether Defendant 

was in custody is immaterial, because it is undisputed that Miranda

warnings were given and that Defendant waived his Miranda rights 

prior to questioning. 

{¶ 42} With respect to Defendant’s claim that his statements 

were not voluntary, in State v. Moore, Greene App. No. 07CA93, 

2008-Ohio-6238, at ¶12-13, we stated: 

{¶ 43} “The Due Process Clause requires an inquiry separate 

from custody considerations and compliance with Miranda regarding 

whether a suspect's will was overborne by the circumstances 

surrounding the giving of a confession. Dickerson v. United States

(2000), 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405. Voluntariness 

of a confession and compliance with Miranda are analytically 

separate inquiries. State v. Pettijean (2000), 140 Ohio App.3d 

517, 748 N.E.2d 133. Even if Miranda warnings are not required, 

a confession may be involuntary if the defendant's will was 
16

overborne by the totality of the facts and circumstances 

surrounding the giving of his confession. Dickerson; Pettijean. 

{¶ 44} “The due process test takes into consideration both the 

characteristics of the accused and the details surrounding the 

interrogation. Id. Factors to be considered include the age, 

mentality, and prior criminal experience of the accused; the 

length, intensity and frequency of the interrogation, the existence 

of physical deprivation or mistreatment, and the existence of 

threats or inducements. State v. Edwards (1976), 49 Ohio St.2d 

31, 358 N.E.2d 1051. A defendant's statement to police is voluntary 

absent evidence that his will was overborne and his capacity for 

self-determination was critically impaired due to coercive police 

conduct. Colorado v. Spring (1987), 479 U.S. 564, 107 S.Ct. 851, 

93 L.Ed.2d 954; State v. Otte, 74 Ohio St.3d 555, 660 N.E.2d 711, 

1996-Ohio-108.” 

{¶ 45} The record demonstrates that following Defendant’s 

waiver of his Miranda rights, Defendant was coherent, straight 

forward, and very cooperative in answering questions. Although 

Defendant was questioned by police for a total of five and one-half 

hours, he used the restroom during a break, and there was at all 

times food and water available nearby, although Defendant never 

requested any of those things. There was no physical deprivation, 

mistreatment, or coercive police conduct. No threats or promises 
17

were made to Defendant to induce his statements. After the 

interview concluded, Defendant left with his wife. 

{¶ 46} The totality of the facts and circumstances surrounding 

Defendant’s interrogation do not demonstrate that Defendant’s will 

was overborne by coercive police conduct and that his confession 

was involuntary. 

{¶ 47} Defendant’s fourth assignment of error is overruled. 

FIFTH ASSIGNMENT OF ERROR

{¶ 48} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION 

TO DISMISS FOR DUE PROCESS AND SPEEDY TRIAL VIOLATIONS.” 

{¶ 49} On February 5, 2008, Defendant filed a motion to dismiss 

the indictment for a violation of his speedy trial rights. On 

March 11, 2008, the State filed a memorandum in opposition to 

Defendant’s motion. On April 11, 2008, the trial court filed an 

Entry overruling Defendant’s motion. The court’s Entry did not 

contain any findings of fact or conclusions of law, and merely 

stated: 

{¶ 50} “Upon review of the Court record, written and oral 

arguments of counsel, the Court finds that the Defendant’s motion 

to dismiss on grounds of speedy trial and due process violations 

is not well taken and the same is denied.” 

{¶ 51} On April 14, 2008, Defendant filed a request for written 

findings of fact and conclusions of law with respect to the trial 
18

court’s denial of Defendant’s motion to dismiss on speedy trial 

grounds. Prior to the commencement of trial, the court, by oral 

pronouncement, denied Defendant’s request for written findings 

of fact and conclusions of law. 

{¶ 52} By Decision and Entry filed on December 16, 2010, we 

remanded this case to the trial court for findings of fact and 

conclusions of law with respect to the trial court’s denial of 

Defendant’s motion to dismiss for a violation of his speedy trial 

rights. We further provided the parties with ample opportunity 

to file additional briefs on this issue after the trial court’s 

findings were filed. 

{¶ 53} On May 11, 2011, the trial court filed an Entry containing 

its findings of fact and conclusions of law with respect to the 

trial court’s denial of Defendant’s motion to dismiss on speedy 

 trial grounds. No additional briefs on the speedy trial issue 

have been filed by either party. 

{¶ 54} The Sixth Amendment to the United States Constitution 

and Article I, Section 10 of the Ohio Constitution guarantee a 

criminal defendant the right to a speedy trial. In Ohio that right 

is implemented by the statutory scheme imposing specific time 

limits in R.C. 2945.71 et seq. State v. Pachey 91980), 64 Ohio 

St.2d 218. The particular rights which that statutory scheme 

confers attach when criminal charges are placed against a 
19

defendant. They continue in operation so long as those charges 

remain pending, until he is brought to trial. 

{¶ 55} R.C. 2945.71(C)(2) requires the State to bring a person 

against whom a felony charge is pending to trial within two hundred 

and seventy days after the person’s arrest, unless the time for 

trial is extended pursuant to the provisions in R.C. 2945.72. 

Each day the person is held in jail in lieu of bail on the pending 

charge is counted as three days. R.C. 2945.71(E). For a violation 

of the rights these sections confer, a defendant may seek a 

discharge from criminal liability pursuant to R.C. 2945.73. The 

merits of a motion for discharge for a violation of speedy trial 

rights made pursuant to R.C. 2945.73 are determined as of the date 

the motion is filed, not when it is decided or when, after a denial, 

a defendant is brought to trial. State v. Morris, Montgomery App. 

No. 19283, 2003-Ohio-1049. 

{¶ 56} The time limits for bringing a defendant to trial may 

be extended or tolled by R.C. 2945.72, which provides in relevant 

part: 

{¶ 57} “The time within which an accused must be brought to 

trial, or, in the case of felony, to preliminary hearing and trial, 

may be extended only by the following: 

{¶ 58} “* * * 

{¶ 59} “(E) Any period of delay necessitated by reason of a 
20

plea in bar or abatement, motion, proceeding, or action made or 

instituted by the accused; 

{¶ 60} “* * * 

{¶ 61} “(H) The period of any continuance granted on the 

accused’s own motion, and the period of any reasonable continuance 

granted other than upon the accused’s own motion.” 

{¶ 62} A review of the files and records in this case reveals 

that at the time Defendant filed his motion to dismiss for want 

of a speedy trial on February 5, 2008, far more than the 270 days 

allowed for trial by R.C. 2945.71 had elapsed since Defendant was 

first served with a summons on the original indictment in Union 

County, Ohio, on August 7, 2006. Thus, Defendant established a 

prima facie case for discharge pursuant to R.C. 2945.73, and the 

burden shifted to the State to demonstrate that Defendant was 

brought to trial within the time required by R.C. 2945.71 and 

2945.72. State v. Geraldo (1983), 13 Ohio App.3d 27. The State 

has met its burden in this case. 

The Union County Case

{¶ 63} Defendant was indicted on these same charges in Union 

County, Ohio, on August 4, 2006. On August 7, 2006, Defendant 

was served with a summons on that indictment, at which point the 

speedy trial time began to run. Defendant was not arrested on 

these charges. Speedy trial time ran from August 7, 2006 until 
21

August 15, 2006, at which time Defendant filed several pretrial 

motions including a motion for a change of venue, a demand for 

discovery, a motion to dismiss the indictment, and a motion to 

suppress evidence, which tolled the time for trial pursuant to 

R.C. 2945.72(E). From August 7, 2006, until August 15, 2006, eight 

days chargeable to the State for speedy trial purposes elapsed. 

 From August 15, 2006, until September 27, 2006, when the trial 

court ruled on many of Defendant’s pending pretrial motions, the 

time for trial was tolled pursuant to R.C. 2945.72(E). 

{¶ 64} On September 27, 2006, the speedy trial time began 

running again and ran until October 20, 2006, when Defendant began 

filing from that date onward a number of additional pretrial 

motions, including a motion to compel the State to produce one 

of the child victims for trial, a motion for a protective order, 

a motion to compel discovery, a motion in limine, and a motion 

for a directed verdict. Those motions tolled the time for trial 

pursuant to R.C. 2945.72(E). Furthermore, on January 30, 2007, 

the trial court granted a reasonable continuance of the trial at 

the State’s request. That continued the time for trial pursuant 

to R.C. 2945.72(H). On March 22, 2007, the State dismissed this 

case without prejudice. 

{¶ 65} As the trial court correctly points out in its findings 

of fact and conclusions of law on the speedy trial issue, throughout 
22

the pendency of these proceedings in Union County, Ohio, Defendant 

filed many pretrial motions, several of which extended the time 

for trial pursuant to R.C. 2945.72. Defendant concedes this fact 

in his appellate brief. Some of those pretrial motions remained 

pending at the time the State dismissed this case on March 22, 

2007. As the trial court noted, nearly every delay of the trial 

was occasioned by motions made by the defendant. 

{¶ 66} Between September 27, 2006, and October 20, 2006, 

twenty-three days chargeable to the State for speedy trial purposes 

elapsed. From October 20, 2006, until March 22, 2007, when the 

State dismissed this case, the time for trial was tolled as a result 

of Defendant’s pretrial motions that were still pending, R.C. 

2945.72(E), and the granting of a reasonable continuance of the 

trial other than upon the accused’s own motion, R.C. 2945.72(H). 

 At the time the State dismissed this case on March 22, 2007, which 

ended the Union County proceedings, a total of thirty-one days 

chargeable to the State for speedy trial purposes had elapsed. 

The Clark County Case

{¶ 67} Defendant was reindicted on these same charges in Clark 

County, Ohio, on October 16, 2007. The time period between the 

State’s dismissal of this case on March 22, 2007, and Defendant’s 

reindictment on these same charges on October 16, 2007, is not 

included in the speedy trial computations because no charges were 
23

pending against Defendant during that time. State v. Broughton

(1991), 62 Ohio St.3d 253. However, upon reindicting Defendant 

in a subsequent indictment premised upon the same facts alleged 

in the original indictment, the State does not get a fresh 270 

day time period to bring Defendant to trial. Rather, any time 

period that elapsed under the original indictment is tacked onto 

the time period commencing with the second indictment. Id. 

{¶ 68} On October 17, 2007, Defendant was served with a summons 

on the Clark County indictment and the speedy trial time began 

to run. Defendant was not arrested on these charges. Speedy trial 

time ran from October 17, 2007, until February 5, 2008, at which 

time Defendant filed a motion to dismiss and a motion to suppress 

the evidence which tolled the time for trial pursuant to R.C. 

2945.72(E). From October 17, 2007, until February 5, 2008, one 

hundred and eleven days chargeable to the State for speedy trial 

purposes elapsed. From February 5, 2008, until April 10, 2008, 

when the trial court overruled Defendant’s motion to dismiss and 

his motion to suppress the evidence, the time for trial was tolled 

pursuant to R.C. 2945.72(E). 

{¶ 69} On April 10, 2008, the trial court overruled Defendant’s 

motion to dismiss and his motion to suppress, and the speedy trial 

time began running again, and ran until April 14, 2008, at which 

time Defendant’s jury trial commenced. Between April 10, 2008, 
24

and April 14, 2008, four days chargeable to the State for speedy 

trial purposes elapsed. 

{¶ 70} At the time Defendant filed his motion to dismiss on 

February 5, 2008, claiming a violation of his speedy trial rights, 

thirty one days chargeable to the State for speedy trial purposes 

had elapsed during the Union County proceedings, and one hundred 

and eleven days chargeable to the State for speedy trial purposes 

had elapsed during the Clark County proceedings, for a total of 

one hundred and forty-two elapsed days. That is well within the 

two hundred and seventy day limit allowed by R.C. 2945.71 for 

bringing Defendant to trial. 

{¶ 71} Furthermore, at the time Defendant’s jury trial 

commenced in Clark County, on April 14, 2008, a total of one hundred 

and fifteen days chargeable to the State for speedy trial purposes 

had elapsed in the Clark County proceedings. That figure added 

to the thirty-one days chargeable to the State for speedy trial 

purposes that elapsed during the Union County proceedings, results 

in a total of one hundred and forty-six days chargeable to the 

State for speedy trial purposes that had elapsed. Again, that 

is well within the allowable two hundred and seventy day limit 

for bringing Defendant to trial. R.C. 2945.71. Defendant’s 

speedy trial rights were not violated in this case. 

{¶ 72} Defendant also complains that his constitutional speedy 
25

trial rights were violated when, following a failed prosecution 

in Union County, Ohio, there was a seven month delay in 

re-initiating charges in Clark County, Ohio, which were identical 

to and based upon the same facts as the Union County charges. 

In determining whether this delay violated Defendant’s 

constitutional speedy trial rights, it is necessary to balance 

and weigh the conduct of the prosecution and the defendant by 

examining four factors: (1) the length of the delay; (2) the reason 

for the delay; (3) Defendant’s assertion of his speedy trial rights; 

and (4) the prejudice to Defendant as a result of the delay. Barker 

v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. 

The first factor, the length of the delay, performs a gate-keeping 

function to the extent that a delay approaching one year typically 

is required to establish “presumed prejudice,” the existence of 

which is necessary to trigger an inquiry into the other three Barker

factors. Barker, at 530; Doggett v. United States (1992), 505 

U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520; State v. Triplett (1997), 

78 Ohio St.3d 566; State v. Bailey, Montgomery App. No. 20764, 

2005-Ohio-5506. 

{¶ 73} Here, the seven month delay between dismissal of the 

Union County, Ohio, proceeding by the State and Defendant’s 

reindictment on those same charges in Clark County, Ohio, is legally 

insufficient to establish presumed prejudice and trigger a review 
26

of the other Barker factors. Defendant’s constitutional speedy 

trial rights were not violated. 

{¶ 74} Defendant’s fifth assignment of error is overruled. 

SIXTH ASSIGNMENT OF ERROR

{¶ 75} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION 

FOR A CONTINUANCE OF THE JURY TRIAL.” 

{¶ 76} The grant or denial of a continuance is a matter entrusted 

to the broad, sound discretion of the trial court, and an appellate 

court must not reverse the trial court’s decision absent an abuse 

of discretion. State v. Unger (1981), 67 Ohio St.2d 65. An abuse 

of discretion means more than a mere error of law or an error in 

judgment. It implies an arbitrary, unreasonable, unconscionable 

attitude on the part of the trial court. State v. Adams (1980), 

62 Ohio St.2d 151. 

{¶ 77} In Ungar v. Sarafite (1964), 376 U.S. 575, 589-90, 84 

S.Ct. 841, 11 L.Ed.2d 921, the United States Supreme Court stated: 

{¶ 78} “The matter of continuance is traditionally within the 

discretion of the trial judge, and it is not every denial of a 

request for more time that violates due process even if the party 

fails to offer evidence or is compelled to defend without counsel. 

Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377. 

Contrariwise, a myopic insistence upon expeditiousness in the face 

of a justifiable request for delay can render the right to defend 
27

with counsel an empty formality. Chandler v. Fretag, 348 U.S. 3, 

75 S.Ct. 1, 99 L.Ed. 4. There are no mechanical tests for deciding 

when a denial of a continuance is so arbitrary as to violate due 

process. The answer must be found in the circumstances present 

in every case, particularly in the reasons presented to the trial 

judge at the time the request is denied. Nilva v. United States, 

352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415; Torres v. United States, 

270 F.2d 252 (C.A.9th Cir.); cf. United States v. Arlen, 252 F.2d 

491 (C.A.2d Cir.).” 

{¶ 79} The Ohio Supreme Court has adopted a balancing test that 

weighs against any potential prejudice to a defendant, concerns 

such as the court’s right to control its own docket, and the public’s 

interest in the prompt and efficient dispatch of justice. Unger,

67 Ohio St.2d at 67. In evaluating a motion for a continuance, 

the court should consider: the length of the delay requested; 

whether other continuances have been requested and received; the 

inconvenience to litigants, witnesses, opposing counsel and the 

court; whether the requested delay is for legitimate reasons or 

whether it is dilatory, purposeful, or contrived; whether the 

defendant contributed to the circumstances which give rise to the 

request for a continuance; and other relevant factors, depending 

on the unique facts of each case. Id. at 67-68. 

{¶ 80} On February 12, 2008, the court ordered trial of this 
28

case to commence on April 14, 2008. On February 20, 2008, the 

trial court ordered the State to provide Defendant with a bill 

of particulars, which the State filed on March 28, 2008, but which 

Defendant did not receive until April 1, 2008. On April 4, 2008, 

Defendant filed a motion to dismiss and/or continue the trial, 

claiming that because of the State’s late filing of the bill of 

particulars, Defendant needed more time to both file motions 

raising new legal issues that arise as a result of the bill of 

particulars and prepare for trial. That same day, April 4, 2008, 

the State filed its response, a memorandum contra Defendant’s 

motion to dismiss and/or continue the trial. 

{¶ 81} The State argued that Defendant’s request for a 

continuance, based upon the fact that the bill of particulars filed 

by the State raised new legal issues and was merely a delaying 

tactic, because Defendant had received essentially the same bill 

of particulars on August 29, 2006, over a year before, during 

the Union County proceedings, and Defendant at all times had open 

access to the State’s entire file in this matter and therefore 

knew the facts and issues in this case. On April 11, 2008, the 

trial court filed its Entry denying Defendant’s request for a 

continuance of the trial. On April 14, 2008, Defendant filed a 

motion seeking reconsideration of the court’s previous ruling 

denying a continuance. Just prior to the start of trial on April 
29

14, 2008, Defendant again orally moved for a continuance of the 

trial. After hearing the arguments of counsel, the trial court 

again denied Defendant’s motion for a continuance. 

{¶ 82} The principal reason for Defendant’s request for a 

continuance was his claim that the bill of particulars filed in 

2006 in the Union County proceedings had been found by that court 

to lack specificity sufficient to fairly put Defendant on notice 

of what conduct on his part constituted the criminal offense(s) 

with which he was charged, and that the nearly identical bill of 

particulars filed on March 28, 2008, in the Clark County 

proceedings, suffered from the same deficiencies, because it failed 

to provide specific dates, times, and places the offenses occurred, 

and that those deficiencies had to be cured by a more specific 

bill of particulars before Defendant could properly prepare his 

defense. Simply stated, Defendant wanted a continuance to compel 

a more specific bill of particulars. 

{¶ 83} Although there is no indication that a previous 

continuance had been sought by Defendant, the delay Defendant 

sought was of unspecified length. The State argued that the trial 

should not be delayed because the victims were prepared to go 

forward, so they could move on with their lives. Furthermore, 

as discussed in more detail in Defendant’s seventh assignment of 

error, in addition to the bill of particulars filed on March 28, 
30

2008, the State also filed an amended indictment and bill of 

particulars on April 18, 2008, but was unable to provide an exact 

date, time, and place for every offense because it did not possess 

any more particular or specific information than that already 

provided. In that regard, we note that the abuse of these children 

involved a continuing course of conduct that occurred just about 

every day, over a prolonged period of several years, when the 

victims were young children. Moreover, Defendant has failed to 

demonstrate how he was prejudiced by the bill of particulars. 

{¶ 84} On these facts and circumstances, an abuse of discretion 

on the part of the trial court in denying Defendant’s requested 

continuance has not been demonstrated. Defendant’s sixth 

assignment of error is overruled. 

SEVENTH ASSIGNMENT OF ERROR

{¶ 85} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION 

FOR AN ORDER COMPELLING THE STATE TO PROVIDE A PROPER AND SPECIFIC 

BILL OF PARTICULARS.” 

{¶ 86} On March 28, 2008, two weeks before trial, the State 

filed a bill of particulars in compliance with the trial court’s 

previous order that a bill of particulars be filed. Defendant 

complains that this bill of particulars filed by the State was 

strikingly similar to the one the Union County Court of Common 

Pleas found to be deficient. On the morning of trial, April 14, 
31

2008, Defendant filed a motion to compel the State to file a proper 

and more specific bill of particulars. The trial court addressed 

the matter prior to the commencement of trial and overruled 

Defendant’s motion. The court concluded that given the nature 

of the alleged offenses, the State could not provide more specific 

information. 

{¶ 87} The offenses charged in this case involved the horrendous 

physical abuse of five young children that occurred almost daily 

over an extended period of time. The indictment filed on October 

16, 2007, the bill of particulars filed on March 28,2008, and the 

amended indictment and bill of particulars filed on April 18, 2008, 

all specified that the offenses occurred during a four-year period 

of time, from July 24, 2000 through November 19, 2004. 

{¶ 88} Defendant was charged with multiple counts of 

endangering children, R.C. 2919.22(B)(1)-(4), permitting child 

abuse, R.C. 2903.15(A), and felonious assault, R.C. 2903.11(A)(1). 

 The precise date and time of the offenses are not essential 

elements of those crimes. State v. Barnecut (1988), 44 Ohio App.3d 

149. Thus, a certain degree of inexactitude in averring the date 

of the offense is not per se impermissible or fatal to the 

prosecution. State v. Sellards (1985), 17 Ohio St.3d 169; State 

v. Lawrinson (1990), 49 Ohio St.3d 238. 

{¶ 89} Nevertheless, where an accused requests a bill of 
32

particulars, the State must supply specific dates and times for 

the alleged offense if it possesses that information. Sellards, 

supra. Furthermore, even if the State is unable to supply more 

specific dates for the offenses charged because it does not possess 

such information, the absence of specific dates may yet be fatal 

to the prosecution if it results in material detriment to the 

accused’s ability to fairly defend himself, as where the accused 

asserts an alibi or claims that he was indisputably elsewhere during 

part, but not all, of the interval specified. Sellards, supra. 

{¶ 90} In many cases involving child abuse the victims are young 

children who are simply unable to remember exact dates and times, 

particularly where the crimes involve a repeated course of conduct 

over an extended period of time. Barnecut, supra. That is the 

case here. Furthermore, there is no evidence that the State knew 

of any more specific dates for the offenses than those in the 

indictment and bill of particulars. The State was simply unable 

to supply specific dates when each of these many offenses occurred 

because it did not have that information. 

{¶ 91} The only remaining question is whether the State’s 

inability to supply more specific dates and times for each of these 

many offenses that occurred over a four-year period resulted in 

material detriment to Defendant’s ability to defend himself. 

Defendant claims in conclusory fashion that is the case, but fails 
33

to identify how he was prejudiced by the lack of precise dates 

and times. He claims only that it was strikingly similar to the 

bill of particulars the Union County Common Pleas Court had found 

deficient. That bare contention fails to demonstrate prejudice. 

 

{¶ 92} Defendant’s defense at trial was not that he was 

indisputably elsewhere during part, but not all, of the times 

specified for when these offenses occurred. Instead, Defendant’s 

defense was that the children’s stories about being abused were 

grossly exaggerated and therefore lies, that they were induced 

by leading questions and coaching by investigators, that 

Defendant’s punishment of the children was proper parental 

discipline, and that it was Defendant’s wife, Vonda Ferguson, not 

Defendant, who abused the children. The inexactitude in supplying 

dates and times that these offenses occurred would not be a material 

detriment to Defendant’s ability to defend himself on those 

theories. Barnecut. No violation of Defendant’s right to a fair 

trial or due process has been demonstrated. 

{¶ 93} Defendant’s seventh assignment of error is overruled. 

EIGHTH ASSIGNMENT OF ERROR

{¶ 94} “THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A 

CUMULATIVE SIXTY-FIVE YEAR SENTENCE.” 

{¶ 95} Defendant argues that the trial court abused its 
34

discretion in sentencing him to a sixty-five year prison term, 

which Defendant claims is excessive. 

{¶ 96} In State v. Jeffrey Barker, Montgomery App. No. 22779, 

2009-Ohio-3511, at ¶36-38, we wrote: 

{¶ 97} “The trial court has full discretion to impose any 

sentence within the authorized statutory range, and the court is 

not required to make any findings or give its reasons for imposing 

maximum, consecutive, or more than minimum sentences. State v. 

Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856, at 

paragraph 7 of the syllabus. Nevertheless, in exercising its 

discretion the trial court must consider the statutory policies 

that apply to every felony offense, including those set out in 

R.C. 2929.11 and 2929.12. State v. Mathis, 109 Ohio St.3d 54, 

846 N.E.2d 1, 2006-Ohio-855, at ¶ 37. 

{¶ 98} “When reviewing felony sentences, an appellate court 

must first determine whether the sentencing court complied with 

all applicable rules and statutes in imposing the sentence, 

including R.C. 2929.11 and 2929.12, in order to find whether the 

sentence is contrary to law. State v. Kalish, 120 Ohio St.3d 23, 

896 N.E.2d 124, 2008-Ohio-4912. If the sentence is not clearly 

and convincingly contrary to law, the trial court's decision in 

imposing the term of imprisonment must be reviewed under an abuse 

of discretion standard. Id. 
35

{¶ 99} “‘The term “abuse of discretion” connotes more than an 

error of law or judgment; it implies that the trial court's attitude 

is unreasonable, arbitrary, or unconscionable.’ State v. Adams

(1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144.” 

{¶ 100} A review of the sentencing hearing demonstrates that 

the trial court considered the presentence investigation report, 

the purposes and principles of felony sentencing, R.C. 2929.11, 

the seriousness and recidivism factors, R.C. 2929.12, statements 

by all parties at sentencing, and the victim impact statements. 

 The court also informed Defendant about post-release control 

requirements. Accordingly, the trial court complied with all 

applicable rules and statutes in imposing its sentence. 

Furthermore, although the eight-year prison terms imposed for the 

endangering children and felonious assault counts and the five 

year prison terms imposed for the permitting child abuse counts 

were the maximum sentences allowed by law for felonies of the second 

and third degrees, respectively, those terms are nevertheless 

within the authorized range of available punishments. R.C. 

2929.14(A)(2), (3). Defendant’s sentence is not clearly and 

convincingly contrary to law. Kalish. 

{¶ 101} In arguing that his sixty-five year prison term is 

excessive and constitutes an abuse of the trial court’s discretion, 

Defendant points out that he has no previous convictions, he has 
36

 lost his job at the Honda plant where he worked for twenty years, 

he does not drink alcohol, smoke, or use drugs, and he is an 

extremely religious man who often does volunteer work at his church. 

 As the trial court noted, however, Defendant’s conduct constitutes 

multiple counts of child abuse involving horrific physical and 

mental abuse and torture of his young children that occurred on 

an almost daily basis for several years. That abuse resulted 

in serious physical and psychological harm to Defendant’s children. 

 R.C. 2929.12(B)(2). Defendant’s relationship with the victims, 

their parent, facilitated the offense. R.C. 2929.12(B)(6). 

There are no grounds that mitigate the seriousness of Defendant’s 

conduct. Accordingly, Defendant’s conduct constitutes the worst 

form of the offense. Furthermore, although Defendant has no prior 

criminal record and was a law abiding citizen for many years, 

Defendant shows no genuine remorse. R.C. 2929.12(D)(5). A 

minimum prison term would demean the seriousness of these offenses. 

{¶ 102} Although the trial court imposed the maximum sentence 

allowable for each offense, it ran some sentences concurrently 

and others consecutively for a total sentence of sixty-five years. 

 The record before us justifies the sentence imposed on Defendant. 

 No abuse of discretion on the part of the trial court is 

demonstrated. 

{¶ 103} Defendant’s eighth assignment of error is overruled. 
37

NINTH ASSIGNMENT OF ERROR

{¶ 104} “THE TRIAL COURT ERRED IN NOT MAKING A COMPLETE RULING 

ON THE ISSUE OF COURT COSTS AND RESTITUTION.” 

{¶ 105} In his ninth and final assignment of error, Defendant 

argues only one issue with respect to the imposition of court costs 

and restitution: that the trial court’s original June 10, 2008 

Judgment Entry of Conviction did not constitute a final, appealable 

order because it did not include court costs and instead indicated 

that issue was still before the court and would be set for a hearing 

at a later date. In its brief, the State agreed with Defendant 

that the trial court’s Judgment Entry of Conviction is not a final, 

appealable order because it did not include the costs of 

prosecution, and requested that we remand the matter to the trial 

court to calculate and impose court costs. 

{¶ 106} In our Decision and Entry filed on July 14, 2010, we 

concluded that because the record in this case demonstrates that 

when the trial court filed its Judgment Entry of Conviction it 

clearly intended to impose court costs but deferred determination 

of the amount of those costs, the court’s failure to calculate 

and include court costs in its Judgment Entry of Conviction 

constitutes a clerical error that may be corrected per Crim.R. 

36, and does not render the Judgment Entry of Conviction non-final. 

 We remanded the matter to the trial court to determine the amount 
38

of court costs and restitution, if any, Defendant must pay, and 

include those matters in its Judgment Entry of Conviction. On 

October 28, 2010, the trial court filed its Amended Judgment Entry 

of Conviction wherein it reimposed the same terms of imprisonment 

upon Defendant and ordered Defendant to pay costs of the prosecution 

in the amount of $20,681.92, but declined to order any restitution 

due to the length of Defendant’s sentence and his financial state. 

 The court also ordered Defendant to pay additional court costs 

in the amount of $9,786.49. 

{¶ 107} No notice of appeal has been filed by either party from 

the trial court’s October 28, 2010 Amended Judgment Entry of 

Conviction, and neither party has filed a supplemental brief 

challenging the amount of costs imposed by the trial court in this 

case, or the trial courts’ refusal to order restitution. 

Accordingly, Defendant’s finality argument in this assignment of 

error has become moot by virtue of the trial court’s October 28, 

2010 Amended Judgment Entry of Conviction. There being no other 

issue raised relevant to court costs or restitution, Defendant’s 

ninth assignment of error is overruled. 

{¶ 108} The judgment of the trial court will be affirmed. 

FROELICH, J., concurs 

BROGAN, J. concurring separately. 
39

(Hon. James A. Brogan, retired from the Second District Court 

of Appeals, sitting by assignment of the Chief Justice of 

the Supreme Court of Ohio.) 

BROGAN, J., concurring: 

{¶ 109} I concur in the well-reasoned opinion of Judge Grady 

in all respects except whether the court’s judgment entry of July 

14, 2010 was a final appealable order. In State v. Threatt, 108 

Ohio St.3d 277, 2006-Ohio-905, the Ohio Supreme Court held that 

a sentencing entry is a final appealable order as to costs. Justice 

Stratton writes in pertinent part the following: 

{¶ 110} “ ‘A judgment that leaves issues unresolved and 

contemplates that further action must be taken is not a final 

appealable order.’ Bell v. Horton (2001), 142 Ohio App.3d 694, 

696, 756 N.E.2d 1241. For example, an order that determines 

liability but defers the determination of damages is not a final 

appealable order, because it does not in effect determine the action 

and prevent a judgment or otherwise meet the definition in R.C. 

2505.02(B)(1). State ex rel. A&D Ltd. Partnership v. Keefe (1996), 

77 Ohio St.3d 50, 53, 671 N.E.2d 13. However, when the remaining 

issue ‘is mechanical and unlikely to produce a second appeal because 

only a ministerial task similar to asserting costs remains,’ then 

the order is final and appealable. (Emphasis added.) State ex 
40

rel. White v. Cuyahoga Metro. Hous. Auth. (1997), 79 Ohio St.3d 

543, 546, 684 N.E.2d 72. 

{¶ 111} “Pursuant to R.C. 2947.23, it is undisputed that trial 

courts have authority to assess costs against convicted criminal 

defendants. When a court assesses unspecified costs, the only 

issue to be resolved is the calculation of those costs and creation 

of the bill. Calculating a bill for the costs in a criminal case 

is merely a ministerial task. Therefore, we hold that failing 

to specify the amount of costs assessed in a sentencing entry does 

not defeat the finality of the sentencing entry as to costs. See 

State v. Slater, Scioto App. No. 01CA2806, 2002-Ohio-5343, 2002 

WL 31194337, ¶ 5, fn. 3.” 

{¶ 112} More than two years before the court imposed the 

sentence upon Ferguson, the State filed a motion to certify the 

costs of prosecution as “court costs” under R.C. 2947.23. There 

is a dispute in Ohio appellate courts whether the “costs of 

prosecution” provision in R.C. 2947.23 includes special prosecutor 

fees. See State v. Sales (Aug. 6, 1985), Carroll App. No. 504 

and State v. Perz (May 16, 2008), Lucas App. No. L-07-1330. See 

also State v. Noe (December 31, 2009), Lucas App. No. 06-1393, 

L-09-1193. Certainly this issue is not mechanical and unlikely 

to produce a second appeal because it is a “ministerial” task such 

as calculating a bill for costs as performed by court clerks. 
41

{¶ 113} I therefore believe the July 14, 2010 judgment entry 

was not a final appealable order because it required the trial 

court to determine the threshold question of whether the special 

prosecutor fees were costs as encompassed by R.C. 2947.23. The 

court’s order did not involve a “clerical error” as contemplated 

by Crim.R. 36. The trial court clearly intended to address that 

legal issue at a later date. Therefore, Ferguson’s first appeal 

should have been treated as a premature appeal until the court 

finally resolved all legal issues before it including the issue 

of special prosecutor fees as costs. After the court determined 

that issue upon remand, the appeal was in a final appealable 

posture. Since Ferguson did not challenge this Court’s costs award 

upon remand, I would affirm the trial court’s judgment in all 

respects. 

 . . . . . . . . . 

Copies mailed to: 

David W. Phillips, Esq. 

David R. Miles, Esq. 

Hon. Richard J. O’Neill