[Cite as State v. Tope , 2020-Ohio-953.]

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

STATE OF OHIO Plaintiff-Appellee

v. LELAND G. TOPE Defendant-Appellant : : : : : : : : : : Appellate Case No. 2019-CA-11

Trial Court Case No. 2017-CR-0608 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 13th day of March, 2020.

. . . . . . . . . . . MARCY VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney, Greene County Prosecutor’s Office, 61 Greene Street, Suite 200, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee CHARLES M. BLUE, Atty. Reg. No. 0074329, 401 East Stroop Road, Kettering, Ohio 45429 Attorney for Defendant-Appellant

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

TUCKER, P.J.-2-

{¶ 1} Defendant-appellant, Leland G. Tope, appeals from his convictio ns for one count of involuntary manslaughter, one count of trafficking in heroin and one count of possession of heroin. Raising two assignments of error, Appell ant argues that his conviction for involuntary manslaughter should be reversed beca use the State did not produce sufficient evidence to prove his guilt, and that all th ree of his convictions should be vacated because he was not brought to trial within 270 days of his arrest, as required by R.C. 2945.71. We find that the State introduced sufficient evidence to prove Appellant’s guilt with respect to each of the elements of invol untary manslaughter, and further, that Appellant’s right to a speedy trial was not viola ted. Therefore, Appellant’s

convictions are affirmed. I. Facts and Procedural History {¶ 2} At 11:59 p.m. on July 17, 2017, the Xenia Greene Central Commun ications

Center received a call for medical assistance from the residenc e of Mark Tope, Appellant’s brother, on Stevenson Road in Xenia Township. See Trial Transcript, 229:17-229:24, 233:9-233:12 and 238:18-239:8, Feb. 11-13, 2019. The first of the emergency personnel to reach th e scene was Deputy William Coe o f the Greene County Sheriff’s Department, who arrived at 12:04 a.m. Id. at 256:4-256:17. He had been informed en route that the caller reported a possible overdose and was attempting to

resuscitate the victim. Id. at 256:15-256:21 and 260:12-260:22. {¶ 3} When Deputy C oe entered the resi dence, he enco untered Appellant ’s sisterin-law and brother-in-law, who did not know why he was there. Id. at 257:3-258:2. Appellant appeared moments later at the top of the stairway lea ding to the basement of-3- the residence, beckoning the deputy to join him. Id. at 258:23-259:7. Once in the basement, the deputy saw Mark Tope lying on his back on the flo or. Id. at 260:1-260:6. {¶ 4} Deputy Coe’s first aid kit included an automated external defib rillator. Id. at 260:12-260:22. The deputy attached the device’s electrode pads to Mark’s chest, but the device reported that administration of electric shock was c ontraindicated. See id. at 261:2-262:25. At that point, paramedics arrived; the time was approximately 12:06 a.m.

Id. at 261:19-261:25 and 315:4-315:6. The paramedics attempted to resuscitate Mark and administered Narcan, but without success. 1 Id. at 315:12-323:24. At approximately 12:13 a.m., they notified their dispatchers that Mark had died. See id. at 323:25-325:15

and State’s Exhibit 3. {¶ 5} Afterward, Deputy Coe examined the basement and spoke with Appe llant.

Id. at 262:16-264:22, 266:12-269:6, 274:23-276:6, 688:3-689:6, 695 :17-696:25 and State’s Exhibit 4. Appellant admitted that he had purchased a material purported to be heroin at Mark’s request, explaining that he gave Mark one dose contained in a gelatin capsule. See id. The deputy found an empty gelatin capsule, and the Bureau of Criminal Investigation later determined that the small amount o f residue remaining in the capsule was heroin. Id. at 275:16-276:2, 506:21-507:10 and 511:12-512:20. No fingerprints were obtained, and Appellant told Deputy Coe that the other capsules had

been flushed down a toilet. See id. at 280:1-280:10, 364:2-364:5 and 675:1-678:3. An autopsy revealed that Mark’s cause of death was “acute intoxica tion by [c]arfentanil,

1 Deputy Coe had been unable to administer Narcan because, at th e time, the personnel of the Greene County Sheriff’s Department had not yet been issu ed Narcan as a standard component of their first aid ki ts. Trial Transcript, 259:15-25 9:25.-4- [f]entanyl, fluorobutyrylfentanyl, and ethanol.” Id. at 447:4-447:7. {¶ 6} On October 20, 2017, a Greene County grand jury indicted Appell ant as follows: Count 1, involuntary manslaughter, a first-degree felo ny pursuant to R.C. 2903.04(A) and (C); Count 2, trafficking in heroin, a fifth-deg ree felony pursuant to R.C. 2925.03(A)(1) and (C)(6)(a); Count 3, possession of heroin, a f ifth-degree felony pursuant to R.C. 2925.11(A) and (C)(6)(a); and Count 4, tampering with e vidence, a third-degree felony pursuant to R.C. 2921.12(A)(1) and (B). 2 Appellant’s trial began on August 20, 2018, but on August 21, 2018, Appellant’s counsel moved to have Appellant evaluated for competency to stand trial, prompting the trial court to hol d a hearing. Following the hearing, the court filed an entry on August 24, 2018, in which it “found by a preponderance of the evidence that [Appellant was] ha[ving] difficulty in ass isting [counsel with] his defense.” As a result, the court declared a mistrial and order ed a competency

evaluation. {¶ 7} Appellant was subsequently deemed competent to stand trial, and at his second trial, which began on February 11, 2019, he elected to r epresent himself. The jury found him guilty on Counts 1 through 3, and not guilty on Count 4. On February 28, 2019, the trial court sentenced Appellant to serve concurrent t erms of four years in prison for the offense of involuntary manslaughter and 12 months for t he offense of trafficking in heroin, with Appellant’s conviction for possession of heroin be ing merged with his conviction for trafficking. Judgment Entry 1-4, Feb. 28, 2014. Appellant timely filed a notice of appeal to this court on March 25, 2019.

2 We refer to those versions of R.C. 2925.03 and 2925.11 which w ere in effect from September 14, 2016, through October 30, 2018.-5- II. Analysis {¶ 8} For his first assignment of error, Appellant contends that:

APPELLANT’S CONVICTION FOR INVOLUNTARY

MANSLAUGHTER IS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO

PROVE GUILT BEYOND A REASONABLE DOUBT. {¶ 9} Appellant posits that where a defendant is charged with traffic king in a certain controlled substance, the trafficking offense may not serve as the predicate offense for a charge of involuntary manslaughter unless the decedent’s death was proximately caused by the same controlled substance. See Appellant’s Brief 13-15. In reliance on this proposition, Appellant argues that the State did not produce su fficient evidence to prove him guilty of involuntary manslaughter because the State failed to produce any evidence that heroin was the proximate cause of his brother’s death. Id . at 11-12. {¶ 10} Sufficiency of the evidence “is the legal standard applied to d etermine whether * * * the evidence [in a given case] is [adequate] as a matter of law to support

the * * * verdict.” State v. Smith , 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997), citing State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). On review of a challenge to a conviction based upon the sufficiency of the evi dence, the “ ‘relevant inquiry is whether, after viewing the evidence in a light most favorabl e to the prosecution, any

rational trier of fact could have found the essential elements of the crime proven beyond

a reasonable doubt.’ ” Id. , quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. {¶ 11} According to Appellant, this court “has previously [held] that a conviction for possession of a specific controlled substance requires proof th at the drug involved * * *-6- was in fact that specific controlled substance.” Appellant’s B rief 14-15, citing State v. Pendleton, 2d Dist. Clark Nos. 2017 CA 9 & 2017 CA 17, 2018-Ohio-3199, ¶ 30, appeal accepted , 154 Ohio St.3d 1443, 2018-Ohio-4962, 113 N.E.3d 551. 3 He maintains that the “same rationale must apply to the predicate offense [for a charge of] involuntary manslaughter,” meaning that if the predicate offense is “traffi cking in heroin, then there must be sufficient proof adduced that heroin is[,] at a minimum [,] a substantial factor in causing the death of the victim.” Id. at 15. Hence, he “concedes that there was sufficient evidence presented [at trial] to sustain his convict ion for trafficking in heroin,” but he emphasizes that the Montgomery County Coroner determined his brother’s cause of death to be “acute intoxication by [c]arfentanil, [f]entanyl , fluorobutyrylfentanyl, and

ethanol.” Id. at 12-13; Trial Transcript, 447:4-447:7. {¶ 12} The eponymous appellant in Pendleton was convicted, among other things, of trafficking in a mixture that contained heroin and fentanyl. See Pendleton at ¶ 8-10. In that part of the opinion to which Appellant refers, we consi dered whether trafficking in a mixture of heroin and fentanyl should be treated as a single offense, as two offenses subject to merger pursuant to R.C. 2941.25(A), or as two offens es not subject to merger pursuant to R.C. 2941.25(B). See id. at ¶ 29-30. We held that trafficking in a mixture of heroin and fentanyl should be treated as two offenses not su bject to merger because a conviction for trafficking in heroin “require[s] proof that t he ‘drug involved in the violation

3 Appellant inaccurately indicates that we cited State v. Delfino , 22 Ohio St.3d 270, 490 N.E.2d 884 (1986), and State v. Huber , 2d Dist. Clark No. 2010-CA-83, 2011-Ohio-6175, in support of the principle he attributes to the Pendleton opinion. The citations to Delfino and Huber , however, related to the merger of allied offenses, rather tha n to the burden of proof in possession or trafficking cases. Pendleton at ¶ 29-30.-7- [was] heroin or a compound, mixture, preparation, or substance containing heroin,’ ” whereas a “conviction for trafficking in fentanyl require[s] pr oof that the ‘drug involved in the violation [was] any compound, mixture, preparation, or subs tance included in [S]chedule I or [S]chedule II, wi th the exception of * * * hero in.’ ” 4 (Emphasis added.)

See id. at ¶ 30, quoting R.C. 2925.03(C)(1) and 2925.11(C)(6). 5 Thus, as the context illustrates, Appellant’s characterization of the Pendleton opinion is not entirely accurate. {¶ 13} Moreover, R.C. 2925.03(C)(6) establishes that a person who viol ates R.C. 2925.03(A) “is guilty of trafficking in heroin” if “the drug in volved in the violation is heroin or a * * * mixture * * * containing heroin.” (Emphasis added.) A “mixture” is a “blending of several ingredients without * * * alteration * * *, [such th at] each [ingredient] retains its own nature and properties,” in contrast to a “combination, in w hich the [ingredients] unite by chemical attraction, and, losing their distinct properties, form a [single] compound differing in its properties from [those of] any of the ingredie nts.” (Emphasis omitted.) Webster’s New Twentieth Century Dictionary 1079 (1964). Therefore, selling or offering to sell a mixture containing heroin would be no less a violatio n of R.C. 2925.03(A)(1) and (C)(6) than selling or offering to sell pure heroin, regardless of whether the mixture’s other

4 The excerpt from Pendleton quoted above related to the majority’s consideration of whether trafficking in a mixture of two or more controlled subs tances shoul d be me rged for purposes of sentencing, or treated as separate offenses. R egardless of whether the Ohio Supreme Court reverses our holding in Pendleton , Tope mischaracterizes the discussion, which referred abstractly to the elements of traffi cking in heroin and trafficking in fentanyl for purposes of an allied offense analysis. In Pendleton , we were not asked to consider whether a defendant could properly be convicted for trafficking in a specific controlled substance in the absence of proof that the material being trafficked was, in fact, the specified substance.

5 R.C. 2925.11 has since been revised more than once, but the la nguage we quoted in Paragraph 30 of the Pendleton opinion has not been changed. Compare Pendleton at ¶ 30, with R.C. 2925.11(C)(1) and (C)(6).-8- components were inactive fillers or additional controlled subst ances, such as carfentanil and fentanyl. For that matter, a defendant could be convicted of violating R.C. 2925.03(A)(1) and (C)(6) for selling or offering to sell a mate rial that contained no heroin at all, so long as the defendant believed that the material was heroin. See, e.g. , State v.

Chandler , 109 Ohio St.3d 223, 2006-Ohio-2285, 846 N.E.2d 1234, ¶ 9 (sta ting that “[u]ndoubtedly, a person can be convicted for offering to sell a controlled substance in violation of R.C. 2925.03(A)(1) without actually transferring a controlled substance to the buyer”). {¶ 14} To prove Appellant guilty of trafficking in heroin pursuant to R.C. 2925.03(A)(1) and (C)(6), then, the State had to present eviden ce showing that he sold, offered to sell, or gratuitously delivered to his brother a mat erial that he believed to be heroin, irrespective of the actual composition of the material. 6 See R.C. 2925.03(A)(1) and (C)(6); Chandler at ¶ 9. Appellant has conceded that the State proved as much. Appellant’s Brief 12. In turn, to prove Appellant guilty of in voluntary manslaughter under R.C. 2903.04(A), the State had to present evidence showing that his brother died as a proximate result of his violation of R.C. 2925.03(A)(1) and (C) (6). See R.C. 2903.04(A). {¶ 15} Appellant based his defense on the theory that Mark Tope had di ed by suicide, having independently acquired carfentanil for that pur pose. Id. at 675:15- 676:16. In the narrative testimony he offered in lieu of a con ventional direct examination,

6 The “word ‘sale,’ as used in R.C. 2925.03(A)(1), is broadly de fined to include delivery, barter, exchange, transfer, or gift.” State v. Bradshaw , 4th Dist. Scioto No. 17 CA 3803, 2018-Ohio-1105, ¶ 70; see also R.C. 2925.01(A) and 3719.01(AA); State v. Bailey , 8th Dist. Cuyahoga No. 97330, 2012-Ohio-3356, ¶ 46, fn.1, citing State v. Grier , 5th Dist. Stark No. 2010 CA 0024, 2011-Ohio-3815, ¶ 22.-9- Appellant admitted that he illicitly purchased “a bulk amount” of a material purported to be unadulterated heroin; that he “suppl[ied] [Mark] with a sing le dose” of the material, contained in a gelatin capsule he filled himself; and that Mark consumed the contents of the capsule. Trial Transcript 662:6-662:9, 683:13-683:16, 695: 17-696:25, 703:18-704:3 and 735:21-736:14. By this account, Appellant arrived at his b rother’s house at approximately 10:45 p.m. on July 17, 2017, and his brother cons umed the capsule “as soon as [he] got there.” 7 Id. at 736:22-737:15 and 740:19-741:9. The two then listened to “one side” of an unspecified Simon & Garfunkel album, drank whisky and had a

conversation. See id. at 674:7-674:25, 767:1-768:1 and 791:11-792:2. Mark entered a bathroom, which apparently was also in the basement, and accord ing to Appellant’s theory, consumed carfentanil; when Mark emerged, he sat down “a nd passed right out.”

See id. at 768:2-768:16. Appellant tried to revive Mark for 20 minute s using cardiopulmonary resuscitation (“CPR”), after which he called 91 1 for emergency assistance; his call was received at 11:59 p.m. Id. at 238:18-239:8, 678:12-678:22 and

742:1-744:12. {¶ 16} On cross-examination, the State asked Appellant why he did not immediately call 911, and Appellant answered that because Mark still had a pulse after losing consciousness, and because he “had revived [Mark’s] brea thing” with CPR, he thought that emergency assistance would not be necessary. See id. at 742:1-744:5. Appellant thereafter decided to call 911 “when [Mark] stopped b reathing[,] and his pulse

failed.” See id. at 743:19-744:15.

7 Appellant told the paramedics that he had arrived at 10:30 p.m ., which roughly corresponds to his trial testimony. Id. at 326:5-327:16.-10- {¶ 17} Yet, in a written statement he made at or around 12:47 a.m. on July 18, 2017, Appellant said he had “arrived [at his brother’s house] a t 11:45.” Trial Transcript 265:6-267:8 and State’s Exhibit 4. Appellant acknowledged in t he statement that his brother had “asked [him for] a dose of opiates[,] i.e. [h]eroin [,] knowing that he [would] know in Dayton where to get it,” and he explained that “[s]hort ly after ingesting [t]he [d]rug[,] [Mark] passed out,” at which point he “began giving m outh[-]to[-]mouth.” 8 Id. at State’s Exhibit 4. He indicated, as he later did at trial, tha t Mark’s pulse was initially “strong” but failed, after which he called 911. Id. {¶ 18} When the paramedics reached Mark’s house at approximately 12:06 a.m., however, they examined Mark and observed lividity, which sugges ted to them that Mark must have “been down for quite a while.” See Trial Transcript 315:4-315:6 and 319:16- 322:9. Dr. Kevin Sharrett, the Greene County Coroner, testifie d that the paramedics’ observation of lividity established that Mark must have been de ad for “at least 30 minutes” at that point, and his “best estimate” was that Mark had died “ between 30 and 60 minutes prior to the [paramedics’] arrival.” Id. at 558:8-561:11. He added that the use of CPR would have had no effect on the appearance of lividity. 9 Id. at 575:1-575:16. Given that the paramedics examined Mark between 12:06 a.m. and 12:13 a.m., the import of Dr. Sharrett’s testimony is that Mark died between 11:06 and 11:43 p.m. 10 See id. at 324:24-

8 At trial, the State asked Appellant what he had meant by the w ord “shortly” as he used it in his written statement, and Appellant answered “[w]ithin t he hour.” Trial Transcript 809:16-810:15.

9 The Montgomery County Coroner testified that the autopsy confi rmed that Mark Tope had received CPR, but the evidence did not indicate whether he was still alive at the time. Trial Transcript 490:7-491:13.

10 Mark Tope’s official time of death was reported by the Greene County Coroner as-11- 325:19 and State’s Exhibit 3. This seems to preclude the possi bility that Appellant arrived at his brother’s house as late as 11:45 p.m. {¶ 19} Regardless of the exact time Appellant arrived at his brother’s house, the evidence left the jury to decide which of two scenarios was the true explanation of Mark Tope’s death: (1) Appellant’s theory that Mark died by suicide after intentionally overdosing on carfentanil; or (2) the State’s theory that the m aterial with which Appellant provided Mark contained carfentanil. Appellant argued that the results of Mark’s autopsy proved his theory because no heroin metabolites were found in M ark’s blood, yet the empty gelatin capsule recovered by Deputy Coe tested positive o nly for heroin. See id. at 419:21-422:1 and 677:5-677:19; see also Appellant’s Brief 13. As further proof, Appellant claimed that he consumed “four times the amount” of t he same material that Mark consumed, but without suffering any adverse effects. See id. at 683:12- 683: 21 and

686:2-686:5. He also insisted that he could be confident that he had supplied Mark only with unadulterated heroin because his “connection” for purchasi ng the drug “had the real thing,” which he could confirm based on his previous experience using heroin supplied by that same person. See id. at 698:1-699:6 and 703:18-704:3. {¶ 20} For its part, the State presented evidence showing that heroin is, or was at the relevant time, often mixed with other drugs such as fentany l and carfentanil. See id. at 342:12-344:5, 466:11-469:1 and 514:13-515:2. Although no he roin metabolites were found in Mark’s blood, the chief toxicologist for the Montgomer y County Coroner testified

12:15 a.m. on July 18, 2018. Trial Transcript 541:22-541:25, 5 50:9-551:17 and State’s Exhibit 27. The coroner testified that 12:15 a.m. “was the tim e that [he] used for the [coroner’s] [v]erdict and for the [d]eath [c]ertificate” becaus e the paramedics discontinued their efforts to resuscitate Mark at that time.-12- that Mark could have consumed an amount of heroin too small to result in the detection of the corresponding metabolites, and Appellant himself testifi ed that he had “made sure [that Mark] just had the smallest amount possible.” Id. at 419:21-422:1 and 695:22- 696:9. Addressing the analysis of the residue found in the emp ty gelatin capsule, a forensic scientist from the Bureau of Criminal Investigation te stified that the sample was insufficient to permit a determination of whether the capsule h ad contained anything other

than heroin. See id. at 517:6-517:24. {¶ 21} Nevertheless, the State’s evidence showed that even a trace amo unt of

carfentanil would have been sufficient to cause Mark’s death. The Greene County Coroner testified that “[t]here is no safe amount of [c]arfenta nil,” and the Montgomery County Coroner described carfentanil as “an immensely powerful * * * product in a very small volume,” estimating it to be many times more potent than heroin. 11 See id. at

455:17-456:11 and 576:12-577:11. {¶ 22} Appellant concedes that the State proved him guilty of traffick ing in heroin, and he admits that he provided his brother with a material that he believed to be heroin. Thus, with respect to the charge of involuntary manslaughter, t he State had to prove that Mark Tope died as a proximate result of consuming the material he received from Appellant. The State’s evidence was largely circumstantial, bu t circumstantial evidence “has the same probative value as direct evidence,” meaning that circumstantial evidence “ ‘is sufficient to sustain a conviction if [it] would convince the average [person] of the

11 Dr. Kent Harshberger, the Montgomery County Coroner, compared the potency of carfentanil, fentanyl and heroin to that of morphine, testifyin g that carfentanil “is 10,000 times stronger,” that fentanyl “is about 50 times stronger,” an d that heroin “is about four times stronger.” Trial Transcript 455:21-456:8.-13- defendant’s guilt beyond a reasonable doubt.’ ” State v. Robinson , 10th Dist. Franklin No. 17AP-5, 2018-Ohio-1809, ¶ 20, quoting State v. Heinish , 50 Ohio St.3d 231, 238, 553 N.E.2d 1026 (1990). Here, the jury could have reached only one of two conclusions based on the evidence before it—either Mark independently acqui red carfentanil with the intention of dying by suicide, or the material Appellant suppli ed to Mark contained at least a trace quantity of carfentanil. {¶ 23} Appellant’s testimony could have been sufficient to inspire rea sonable doubt in the minds of the jurors, if the jurors had accepted hi s testimony as credible. Appellant, however, gave the jury several reasons to doubt his credibility. For instance, despite theorizing that Mark died by suicide, Appellant did not clarify what Mark’s motive might have been, and although Deputy Coe and one of the paramed ics testified that Appellant told them at the scene that Mark had never previously used heroin, Appellant claimed at trial that Mark had previously used heroin “maybe ha lf a dozen times.” See Trial Transcript 268:12-268:20, 327:24-328:1 and 654:3-660:4. Appellant dismissed the contradictory testimony as perjury, though at one point during cross-examination, he appeared to contradict himself by stating that Mark had had no previous experience with

heroin. Id. at 731:3-731:17 and 803:8-806:9. Attempting to account for th e inconsistencies between his trial testimony and his earlier wri tten statement, Appellant emphasized that he was an “addict” who “was under the influence of heroin at [the] time” he executed the statement, yet he also claimed to be “perfectly normal” and “lucid” while interacting with Deputy Coe and the paramedics that night. Id. at 683:7-683:25, 696:20- 696:25, 700:4-700:17 and 758:18-760:12. {¶ 24} Perhaps the most definitive source of doubt about the credibili ty of-14- Appellant’s testimony was the testimony offered by the Greene C ounty Coroner, Dr. Sharrett, who determined that Mark Tope died between 11:06 p.m. and 11:43 p.m. on July 17, 2017, based on the lividity observed by the paramedics ; Dr. Sharrett noted that lividity would have required at least 30 minutes to occur and w ould have begun to appear only after Mark’s heart had stopped beating. See id. at 558:8-561:11. Appellant, on the other hand, testified that he administered CPR for approximatel y 20 minutes running from

the time that Mark lost consciousness until the time that Mark’ s pulse failed—the latter being only “a few minutes” before Appellant called for emergenc y assistance at 11:59

p.m. Id. at 678:12-678:22 and 742:1-744:12. {¶ 25} Viewing the evidence “in a light most favorable to the prosecut ion,” we find that the State presented sufficient evidence to prove beyond a reasonable doubt that Mark Tope died as a proximate result of consuming an illicit su bstance trafficked to him by Appellant. Smith , 80 Ohio St.3d at 113, 684 N.E.2d 668. Appellant’s conviction for trafficking in heroin did not necessarily require proof that th e substance itself was, in fact, heroin, nor did the absence of a detectible quantity of carfent anil in the heroin residue recovered from the empty gelatin capsule prove that the materia l with which Appellant provided Mark did not contain carfentanil. Although a signific ant portion of the State’s evidence was thus circumstantial, such evidence is sufficient t o support a conviction. Appellant’s first assignment of error is overruled. {¶ 26} For his second assignment of error, Appellant contends that:

THE TRIAL COURT ERRED AS A MATTER OF LAW BY

OVERRULING APPELLANT’S MOTION TO DISMISS ON THE BASIS OF

SPEEDY TRIAL GROUNDS.-15- {¶ 27} Appellant argues that the trial court erred by failing to susta in his motion to dismiss because the court granted the State’s motion for a cont inuance, which extended the date of Appellant’s first trial more than 270 days beyond t he date of his arrest, in the absence of any “tolling event [that was] attributable to [him] or [was otherwise] reasonable and necessary.” 12 Appellant’s Brief 15. The State moved for a continuance beca use a key witness, the Montgomery County Coroner, was unavailable for the date originally set for Appellant’s first trial, and the trial court held that the coroner’s unavailability was “good

cause” to sustain the motion. State’s Motion to Continue Trial 1, June 8, 2018; Entry and Order Continuing Trial 1, June 13, 2018. {¶ 28} In “an appeal raising a speedy trial issue,” the standard of re view “is to simply count the days as directed in R.C. 2945.71 et seq.” State v. Stevens , 8th Dist. Cuyahoga No. 87693, 2006-Ohio-5914, ¶ 32, citing City of Cleveland v. Seventeenth St.

Assn. , 8th Dist. Cuyahoga No. 76106, 2000 WL 426553, *2 (Apr. 20, 20 00), and State v.

Saikus , 8th Dist. Cuyahoga No. 71981, 1998 WL 108150, *5 (Mar. 12, 19 98). Once “a defendant establishes a prima facie case of a violation of his right to a speedy trial, the burden then shifts to the State to demonstrate [that] the statu tory limit was not exceeded by [showing] the time was properly extended pursuant to R.C. 29 45.72.” State v.

Nichols , 5th Dist. Richland No. 04 CA 56, 2005-Ohio-1771, ¶ 11, citing State v. Butcher , 27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368 (1986). Under R.C. 29 45.72(H), the time in which a defendant must be brought to trial “may be extended” fo r the “period of any

12 The trial court did not enter a formal decision on Appellant’s motion to dismiss, but it was effectively overruled once the court entered its final judg ment. See, e.g. , State v. Wilson , 8th Dist. Cuyahoga No. 105876, 2018-Ohio-3666, ¶ 5.-16- reasonable continuance granted other than upon the [defendant]’ s own motion.” Extensions of trial time “are to be strictly construed against the State” because the right to a speedy trial is constitutionally guaranteed, although a tr ial court’s decision on a

motion for a continuance is reviewed for abuse of discretion. Nichols at ¶ 11, citing State v. Singer , 50 Ohio St.2d 103, 362 N.E.2d 1216 (1977); State v. Jones , 2d Dist. Clark No. 2013-CA-118, 2014-Ohio-4605, ¶ 15. {¶ 29} Appellant maintains that the trial court had “no event [for whi ch it could] properly extend [his] speedy trial time pursuant to R.C. 2945.7 2,” yet this court has held previously that the “unavailability of a key prosecution witnes s” may constitute a reasonable basis for granting a continuance under R.C. 2945.72( H), if the length of the continuance is also reasonable. (Citations omitted.) See State v. Lee , 2d Dist. Montgomery No. 20012, 2004-Ohio-668, ¶ 9; State v. Sanders , 8th Dist. Cuyahoga No. 107253, 2019-Ohio-1524, ¶ 28. Here, the date of Appellant’s ar rest was October 24, 2017, and crediting Appellant with three days pursuant to R.C. 2945.71(E), the State had until July 18, 2018, to bring him to trial. {¶ 30} On the State’s motion, the trial court continued the date of Ap pellant’s first trial from its original date of June 18, 2018, until August 20, 2018, which was 33 days more than the 270 days allowed by R.C. 2945.71(C)(2). Given th at Appellant was being tried on charges including involuntary manslaughter, the testim ony of the Montgomery County Coroner was critical, if not absolutely necessary, which justified an extension under R.C. 2945.72(H). For that matter, despite the trial cour t’s omission of an express finding that the unavailability of the coroner was the basis fo r its decision to grant the continuance, the court did expressly indicate that it granted t he continuance for the reason-17- set forth by the State in its motion. 13 State’s Motion to Continue Trial 1; Entry and Order Continuing Trial 1. The record thereby “affirmatively demonstr ates the necessity for [the] continuance and the reasonableness thereof,” and the court’s de cision to grant the continuance should consequently be upheld. State v. Myers , 97 Ohio St.3d 335, 2002- Ohio-6658, 780 N.E.2d 186, ¶ 62; see also State v. Martin , 156 Ohio St.3d 503, 2019- Ohio-2010, 129 N.E.3d 437, ¶ 19 (citing Myers with approval). Appellant’s second assignment of error is overruled.

III. Conclusion {¶ 31} We find that the State presented sufficient evidence to support Appellant’s conviction on the charge of involuntary manslaughter, regardles s of the fact that a significant portion of the evidence was circumstantial. Furthe rmore, because we find that the trial court had a reasonable basis for continuing Appellant ’s first trial, we hold that the court did not abuse its discretion by sustaining the State’s mo tion for a continuance. Therefore, Appellant’s convictions are affirmed.

. . . . . . . . . . . . . DONOVAN, J. and FROELICH, J., concur.

Copies sent to: Marcy Vonderwell Charles M. Blue Hon. Stephen Wolaver

13 The words “time waived” were written in hand on the trial cour t’s entry sustaining the State’s motion, but Appellant disputes that he executed a waive r. Entry and Order Continuing Trial 1. Because we find that the trial court did n ot abuse its discretion by granting a continuance, the question of whether Appellant execu ted a waiver is effectively moot.