[Cite as State v. Kirkendoll , 2019-Ohio-5019.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO Appellee

v. JOHNATHAN R. KIRKENDOLL Appellant C.A. No. 19CA011465

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 18CR099474

DECISION AND JOURNAL ENTRY Dated: December 9, 2019

CARR, Judge. {¶1} Defendant-Appellant Johnathan Kir kendoll appeals from the judgm ent of the Lorain County Court of Common P leas. This Court affirms.

I. {¶2} Kirkendoll and the victim knew each other since childhood. But it was not until around March 2016 that the two beg an dating. After the victim moved to the west side of Lorain into an apartment, around Chris tmastime 2017, Kirkendoll began getting violent with the victim. Around this time, the building mana ger of the apartment sent Ki rkendoll a notice and informed the victim that Kirkendoll was no longer allowed at the complex as he had previously kicked in the door of the apartment. The victim told the building manage r that the victim informed Kirkendoll that he was no longer permitted there. The victim m aintained that Kirkendoll never lived with the victim in her west side apartment. She further asserted that Kirkendoll was not on the lease and did not have a key. Only the victim and her youn g daughter were listed on the2

lease. However, Kirkendoll did stay at the victim’s apartment “a lot[,]” and occasionally for periods of a couple weeks at a time. {¶3} On August 9, 2018, Kirkendoll drove the victim to the hospital so that she could have emergency surgery due to an ectopic pregnancy. While at t he hospital, Kir kendoll became

irritated with the v ictim and the victim had to have Kirkendoll removed from the hospital. After the surgery, the victim went to stay at her mother’s house and parked her car at a friend’s house. She was afraid Kirkendoll would damage her car because he had m ade threats that he would do

so. {¶4} The next morning, Kirkendoll wanted the victim to drive him to a court date but the victim explained that, because of her surgery, she was not allowed to drive. Shortly thereafter, the victim received a phone call from Kirkendoll te lling her that she “might as well call the police and everything. [Kirkendoll] just destroyed [h er] TV and everything else.” The victim called the police and had the officer come to her mother ’s house because she was too afraid to go to her apartment. She told police that her apartm ent had been broken into and destroyed. The police retrieved a key from the victim and went to her apartment. The police discovered no forced entry but found the apartment in disarray. Bleach was poured all over, furniture was cut, food was thrown around, and the TV was smash ed. Once police arrived, the victim returned to her apartme nt to survey the damage. {¶5} With respect to the events of August 10, 2018, Kirkendoll was c harged with one count of burglary, one count of criminal damaging, and one coun t of criminal mischief. {¶6} On August 17, 2018, Kirkendoll was over and began asking the vi ctim questions

about different men. Kirkendoll then demanded the victim’s pho ne and told the victim that she was “gonna tell [him] everything [he] want[ed] to know or [he w as] gonna beat [her] to death or3

kill [her].” The vic tim believed he would do it because he had hurt her before. At the time, the victim’s daughter was in another room in the apartment. As the victim gave Kirkendoll the phone, she ran out of the apartment and Kirkendoll followed her . The two struggled and Kirkendoll tried to drag the vic tim back into the apartment. D uring the struggle, the victim’s arm

was broken. When the victim broke free, she ran to the manager ’s building and called the police, but the police were unable to respond to the call at the time. Once the victim was sure that Kirkendoll was gone from the apar tment, she returned to get her daughter. Thereafter, the victim went to the police sta tion to file a report. {¶7} After the victim left the police station, she was too afraid to go back to the apartment. Later that day, the building manager was informed b y a tenant that Kirkendoll had returned. Footage from the surveillance camera depicts an indi vidual identified as Kirkendoll kicking in the door to the vic tim’s apartment, entering the apa rtment, and minutes later leaving. The building manager called the police and the victim was infor med of the incident. Police only talked to the victim on the phone a s she was too afraid to retu rn to the apartment even with police presence. {¶8} With respect to the events of August 17, 2018, Kirkendoll was c harged with one count of burglary, one count of menacing by stalking, one count of assault, and one count of criminal trespass. {¶9} After that day, Kirkendoll continued to “constantly” call the v ictim’s phone. On September 5, 2018, an officer r esponded to the victim’s apartme nt because she had called police stating that Kirkendoll had calle d her and was en route to her apartment. The officer arrived and checked the property and residence but Kirkendoll was nowhere t o be found. Around 15 to 20 minutes later, the victim again called police and informed poli ce that Kirkendoll “was actively4

kicking in the door to her residence.” When the officer arrive d, he found “the door to be kicked in, partially opened with the door frame cracked.” Kirkendoll was not located. The officer described the victim as “[t]erri fied” and that “she looked like she had been crying and she was very scared.” Surveillance video shows a person identified as an acquaintance of Kirkendoll knock at the door and leave. Shortly thereafter, a person iden tified as Kirkendoll approaches the door, knocks, and leaves. Seconds later, Kirkendoll reappears, knocks on the apartment door, waits, turns to leave but then ki cks the door, and then leaves. {¶10} As to the September 5, 2018 incidents, Kirkendoll was charged w ith menacing by stalking, criminal damaging, and criminal trespass. {¶11} The matter proceeded to a jury trial. The jury found Kirkendol l guilty of all of the charges aside from the burglary charge related to the events of August 10, 2018. The trial court sentenced Kirkendoll to an aggregate term of eight years and fo ur months. In so doing, the trial

court ordered two of the c ounts to run consecutively. {¶12} Kirkendoll has appealed, raisin g five assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT. {¶13} Kirkendoll argues in his first assignment of error that his tri al counsel was ineffective. Specifically, he asserts that trial counsel was i neffective in failing to file for discovery and in not filing a written motion to dismiss based u pon speedy trial. Additionally, he contends trial counsel was unprep ared for trial. Further, Kirk endoll maintains tr ial counsel was ineffective in failing to object to the jury instruction pertai ning to the burglary charge from August 17, 2018.5

{¶14} In order to prevail on a claim of ineffective assistance of cou nsel, Kirkendoll must show that trial “counsel’s perfo rmance fell below an objective standard of reasonableness and that prejudice arose from counsel’s performance.” State v. Reynolds , 80 Ohio St.3d 670, 674 (1998), citing Strickland v. Washington , 466 U.S. 668, 687 (1984). First, Kirkendoll must show that counsel’s performance was obj ectively deficient by produci ng evidence that counsel acted unreasonably. State v. Keith , 79 Ohio St.3d 514, 534 (1997), citing Strickland at 687. Second,

Kirkendoll must demonstrate that but for counsel’s errors, ther e is a reasonable probability that

the results of the trial w ould have been different. Keith at 534. Discovery and Trial Preparation {¶15} Kirkendoll argues that his tria l counsel was deficient in faili ng to file motions for discovery. However, the record is clear that trial counsel did not file a motion for discovery at the request of Kirkendoll. Speci fically, trial counsel explain ed to the trial court: My client has told me from day one he did not want to waive tim e in this matter, and he further instruc ted me not to file for discovery, as it w ould toll a limited amount of time. I honored that request. I have some basic knowledge of it. I am prepared to go to tria l and defend it with vigor. I did discuss the amount of time he could serve and wou ld serve if he was to plead, but we needed to put everything on the record. {¶16} With respect to trial counsel’s decision not to request discove ry, this Court has stated “the omission is largely a matter of trial strategy, whi ch does not demonstrate ineffective

assistance.” State v. Williams , 9th Dist. Lorain No. 09CA004830, 1991 WL 43317, *4 (Mar. 27, 1991); see also State v. Hatfield , 9th Dist. Wayne Nos. 1711, 1712, 1713, 1714, 1715, 1720, 1981 WL 3987, *1-2 (May 20, 1981). “The reasonableness of coun sel’s determination concerning the extent, method a nd scope of any criminal discove ry necessarily depends upon the particular facts and circumstances of each case.” State v. Allen , 10th Dist. Franklin No. 02AP-6

862, 2003-Ohio-1114, ¶ 7. Here, Kirkendoll himself asked trial counsel not to file for discovery in an effort to seek dismissal based upon a violation of his ri ght to a speedy trial. While the strategy was ultimately unsuccessf ul, that does not make it inh erently unreasonable. See id. at ¶

7. {¶17} Given that strategy, Kirkendoll faults trial counsel for failin g to file a written motion to dismiss based upon a speed y trial violation. However , trial counsel, on the day of trial, did move the trial court to dismiss the matter due to an allege d speedy trial violation. Kirkendoll has not offered an explanation a s to why a written motion was n ecessary. See App.R. 16(A)(7). {¶18} Kirkendoll also asserts that the failure to file for discovery left trial counsel unprepared for trial. However, as noted above, trial counsel e xpressly asserted that, notwithstanding the lack of disc overy, he was prepared to go to trial and vigorously defend Kirkendoll. Even though trial c ounsel did not present any witn esses in Kirkendoll’s defense,

trial counsel raised numerous objections and cross-examined mos t of the State’s witnesses. Moreover, Kirkendoll has not argue d that there were witnesses t hat should have been called that

were not. Failure to Object to Jury Instruction {¶19} Kirkendoll additionally argues t hat trial counsel was ineffect ive in failing to object to the jury instruction fo r the burglary count related t o the events of August 17, 2018.

Kirkendoll notes that the wordin g of the indictment for both bu rglary counts was nearly identical; yet, with respect to the first count, related to the events of August 10, 2018, the jury was instructed as to knowledge, but as to the second count whic h related to August 17, 2018, the jury was additionally instructed as to recklessness. Kirkendol l hypothesizes that this difference is not only improper, it is the reason the jury found him not g uilty of the first count of burglary.7

{¶20} “As a general rule, a defendant is entitled to have the jury in structed on all elements that must be proved to e stablish the crime with which he is charged, and, where specific intent or culpability is an essential element of the offense, a trial court’s failure to instruct on that mental element constitutes error.” (Internal quotations and ci tations omitted.) State v. Wamsley, 117 Ohio St.3d 388, 2008-Ohio-1195, ¶ 17. Kirkendoll was char ged with two counts of burglary in violation of R.C. 2911.12(A)(2). That statute prov ides that “[n]o person, by force, stealth, or deception, shall * * * [t]respass in an occupied st ructure or in a separately secured or separately occupied portion of an occupied structure that is a permanent or temporary habitation of any person when any person other than an accomplice of the o ffender is present or likely to be present, with purpose to commit in the habitation any criminal offense[.]” Trespass is an element of burglary as prohibited by R.C. 2911.12. See R.C. 2911.10. R.C. 2911.10 states that, “[a]s used in sections 2911.11 to 2911.13 of the Revised Code, the element of trespass refers to a

violation of section 2911.21 of t he Revised Code.” R.C. 2911.2 1 prohibits four types of conduct.

See R.C. 2911.21(A)(1)-(4). Further, as defined by R.C. 2911.21, “ to be guilty of trespass, the defendant must act either knowingl y, recklessly, or negligently .” Wamsley at ¶ 14. {¶21} With respect to count one and the events of August 10, 2018, th e trial court defined trespass as requiring that Kirkendoll “knowingly entere d or remained on the land or premises of another without pri vilege to do so * * *.” This la nguage corresponds to R.C. 2911.21(A)(1), which states “[n]o person, without privilege to do so, shall * * * [k]nowingly enter or remain on the land or premises of another[.]” With re spect to count two and the events of August 17, 2018, the trial cour t defined trespass as requiri ng that Kirkendoll “knowingly

entered or remained on the land or premises of another without privilege to do so or that he recklessly entered or remained on the land or premises of [the victim] as to which notice against8

unauthorized access or presence wa s given to the defendant by a ctual communication to the defendant * * *.” This language c orresponds to a combination o f language in R.C. 2911.21(A)(1) and (A)(3). R.C. 2911.12(A)(3) states that “[n]o person, without privilege to do so, shall * * * [r]ecklessly enter or remain on the land or pre mises of another, as to which notice against unauthorized access or presence is given by actual comm unication to the offender, or in a manner prescribed by law, or by posting in a manner reasonably calculated to come to the attention of potential intruders, or by fencing or other enclos ure manifestly designed to restrict access[.]” {¶22} Given the foregoing, including Kirkendoll’s limited argument on the issue,

Kirkendoll has not demonstrated t hat trial counsel’s performanc e was deficient in failing to object to the jury instruction pertaining to the second count o f burglary. In light of the law outlined above, Kirkendoll has not explained why the difference between the two counts of burglary is problematic or obj ectionable. R.C. 2911.12(A) prov ides that criminal trespass can involve a negligent, reckless, or knowing intent depending on t he factual circumstances. See also Wamsley at ¶ 14. {¶23} Kirkendoll’s first assign ment of error is overruled.

ASSIGNMENT OF ERROR II THE TRIAL COURT DENIED APPELLANT DUE PROCESS, IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, BY BEING VINDICTIVE IN ITS SENTENCING FOR EXERCISING HIS RIGHTS TO NOT PLEAD GUILTY AND HAVE HIS CASE TRIED BEFORE A JURY. {¶24} Kirkendoll argues in his second assignment of error that the tr ial court’s sentence

reflects that Kirkendoll was punished for not accepting a plea deal and instead taking his case to

trial.9

{¶25} “[A]n appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincin g evidence” that: (1) “the rec ord does not support the trial court’s findings under relevant statutes,” or (2) “the sentence is otherwise contrary to law.” State

v. Marcum , 146 Ohio St. 3d 516, 2016-Ohio-1002, ¶ 1. “To punish a perso n because he has done what the law plainly allows him to do is a due process vio lation of the most basic sort * * *. There is no question, then, that a sentence vindictively impose d on a defendant for exercising his constitutional right to a jury trial is contrary to law.” (Inte rnal quotations and citations omitted.)

State v. Brooks , 9th Dist. Lorain No. 16CA010958, 2017-Ohio-5620, ¶ 15, quotin g State v.

Rahab , 150 Ohio St.3d 152, 2017-Ohio-1401, ¶ 8. However, “‘there is no presumption of

vindictiveness when a defendant r ejects a plea bargain and is s ubsequently sentenced to a harsher

term.’” State v. Bugg , 9th Dist. Lorain No. 18CA011287, 2019-Ohio-1692, ¶ 6, quoting Rahab at ¶ 3; see also Rahab at ¶ 34 (Hoover, J., concurring in part and dissenting in part) (concurring with the foregoing quoted language). “To determine if a trial court acted vindictively in sentencing a defendant, ‘[w]e [ ] review the entire record – th e trial court’s statements, the evidence adduced at trial, and the information presented during the sentencing hearing – to

determine whether there is evide nce of actual vindictiveness. We will reverse the sentence only if we clearly and convincingly find the sentence is contrary to law because it was imposed as a result of actual vindictiveness on the part of the trial court. ” Brooks at ¶ 15, quoting Rahab at ¶ 19; see also Rahab at ¶ 34 (Hoover, J., concurri ng in part and dissenting in part ) (concurring with the foregoing quoted language). {¶26} Prior to trial, possible plea agreements were discussed. The S tate stated that it had not made any offer but indicated that it was thinking 10 or 11 years. The trial court then asked the prosecutor to list Kirkendoll’s charges and also soug ht information about his record.10

The State provided a lengthy list of convictions. The trial co urt and parties seemed to be in agreement that Kirkendoll could be subject to 19 years in priso n if convicted on all counts following a trial. {¶27} The trial court then engage d in a dialogue with Kirkendoll: [Trial court:] Mr. Kirkendoll, are you aware if you’re convict ed of the felony counts with which you’re charg ed, you could be facing up to 19 years in prison? [Kirkendoll:] Yes. [Trial court:] And are you aware that, pursuant to discussion between myself, the prosecutor, and your attorney, that I have indicated if you wer e to plead today, that you would be looking at a thre e-year sentence? Are you aw are of that? [Kirkendoll:] Yes. [Trial court:] And after discussing that with your attorney an d considering all the facts and circumstances, is it still your decision to go forwar d with trial on Monday? [Kirkendoll:] Yes, Your Honor. [Trial court:] Very well. Now, understand that, you know, dep ending on how the trial goes, you could walk out of here with, you know, a not gu ilty and nothing. But, on the other hand, right now what I know about this case i s very limited. I know your record; I know the charges Okay? I haven’t heard from the victim – or the alleged victim, the co mplaining witness. Haven’t heard from any other witness. Haven’t heard from you, if you choose to testify or not. All these things can come into play, which may or may not cause the three years that I’m considering to be a different number. It could be less; it could be more. But understand this, right now, that’s a number that pretty muc h I’m offering based solely on the charges a nd your record. Do you understand that? [Kirkendoll:] Yeah, yeah. I understand, yeah. {¶28} The matter did proceed to a jury trial and Kirkendoll was found guilty of all of the charges aside from the first count of burglary. The trial cour t sentenced Kirkendoll to an aggregate term of 8 years and 4 months. Kirkendoll received 7 years for burglary, 16 months for11

the menacing by stalking counts, 6 months for assault, 3 months for the criminal damaging counts, and two months for the c riminal trespass and criminal m ischief counts. The sentences were ordered to run concurrently , aside from the sentence for o ne of the menacing by stalking counts which was ordered to run consecutively. {¶29} Kirkendoll argues the sentence was clearly vindictive because t he trial court sentenced Kirkendoll to consecutive sentences based upon his cr iminal record when the trial court was aware of Kirkendoll’s criminal record prior to trial. In addition, Kirkendoll points out that the trial court stated, prior to trial, that the trial cou rt could sentence Kirkendoll to more time if the matter proceeded to t rial and he was found guilty, and t hat was what happened. {¶30} First, we note that with respect to consecutive sentences, the trial court stated the following: [G]iven the separate nature of t he offenses in Counts Two and F our, that causes me, along with your record, to b elieve that consecutive sentenc es are necessary to fulfill the purposes of R.C. 2929.11. And they’re not dispropo rtionate to the seriousness of your conduct or the danger you pose to society. And I further find that your criminal history does require consecutive sentences a nd that harm caused was great or unusual. {¶31} Thus, Kirkendoll’s criminal history was not the sole basis for the trial court to conclude that consecutive sentences were appropriate. As to th e trial court’s pretrial statement

that Kirkendoll could receive mor e time if he went to trial, th e trial court also told Kirkendoll that he could receive less time, or no time if he was found not guilty of the charges. We cannot say that the foregoing evidences actual vindictiveness on the p art of the trial court. See Rahab , 150 Ohio St.3d 152, 2017-Ohio-1401, at ¶ 19. Moreover, at the time of sentencing, the trial court had a more thorough understanding of the facts of the cas e; the trial court heard the victim’s testimony, the testimony of the police officers that i nteracted with the victim, and saw the surveillance video depicting Kirkendoll’s violent behavior. In addition, the trial court12

learned that Kirkendoll had tried to contact the victim from ja il to attempt to convince her not to appear. A victim impact statement was also read at the time of sentencing; therein, the victim

described the effect Kirkendoll’s actions had on the victim’s d aughter. See R.C. 2929.11(B); R.C. 2929.12(B)(1), (2), (6). The trial court also heard from Kirkendoll. Kirkendoll claimed to apologize and accept full responsibility for his actions, but a t the same time seemed to accuse the victim of lying and denied many allegations. Accordingly, the trial court could have reasonably

found that Kirkendoll was not remorseful. See R.C. 2929.12(D)(5). {¶32} Overall, we cannot say that Kirkendoll has demonstrated his sen tence was contrary to law as the record doe s not evidence that the senten ce was imposed as a result of

actual vindictiveness on the part of the trial court. See Rahab at ¶ 19. {¶33} Kirkendoll’s second assign ment of error is overruled.

ASSIGNMENT OF ERROR III

THE COURT ERRED BY SENTENCING APPELLANT TO CONSECUTIVE SENTENCES IN VIOLATION OF R.C. 2929[.14] AND IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AND FOURTEENTH AMEND[MENTS] TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 10 AND 16 OF THE OHIO CONSTITUTION. {¶34} Kirkendoll argues in his third assignment of error that the tri al court erred by imposing consecutive sentences in violation of R.C. 2929.14(C)( 4). Specifically, Kirkendoll argues that the trial court fa iled to make the required finding s at the sentencing hearing. {¶35} R.C. 2929.14(C)(4) states: If multiple prison terms are imposed on an offender for convict ions of multiple offenses, the court may require the offender to serve the priso n terms consecutively if the court finds that the consecutive service i s necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the of fender’s conduct and to the danger the offender poses to the public, and if the cour t also finds any of the following:13

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, orwas under postrelease control for a prior offense. (b) At least two of the multiple offenses were committed as par t of one or more courses of conduct, and the harm caused by two or more of the m ultiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct ade quately reflects the seriousness of the offender’s conduct. (c) The offender’s history of criminal conduct demonstrates tha t consecutive sentences are necessary to protect the public from future crime by the offender. {¶36} “If a court does not make the factual findings required by Sect ion 2929.14(C)(4), prison terms are served concurrent to any others.” (Internal q uotations omitted.) State v.

Bennett , 9th Dist. Summit Nos. 28842, 28843, 2018-Ohio-3935, ¶ 10, quo ting State v. Suggs , 9th Dist. Summit Nos. 27812, 27865, 27866, 2016-Ohio-5692, ¶ 20 , citing State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 23. “When imposing consecutiv e sentences, a trial court must state the required findings as part of the sentencing hear ing[; h]owever, a word-for-word recitation of the language of the statute is not required[.] [A ]s long as the reviewing court can discern that the trial court enga ged in the correct analysis an d can determine that the record contains evidence to support th e findings, consecutive sentence s should be upheld.” (Internal quotations and c itation omitted.) Bennett at ¶ 10. {¶37} When imposing consecutive sentences at the sentencing hearing, the trial court

found that: [G]iven the separate nature of t he offenses in Counts Two and F our, that causes me, along with your record, to b elieve that consecutive sentenc es are necessary to fulfill the purposes of [R.C.] 2929.11. And they’re not dispro portionate to the seriousness of your conduct or the danger you pose to society. And I further find that your criminal history does require consecutive sentences a nd that harm caused was great or unusual.14

{¶38} Kirkendoll correctly points out that R.C. 2929.11 is not mentio ned in R.C. 2929.14(C)(4). Because of this, Kirkendoll argues that the tri al court failed to find that consecutive service was necessary to protect the public from fu ture crime or to punish the

offender. See R.C. 2929.14(C)(4). {¶39} While the trial court’s findings are clearly not a word-for-wor d recitation of the statute, we nonetheless conclude t hat the trial court engaged i n the appropriate analysis and

considerations. See Bennett at ¶ 10. Notably, R.C. 2929.11(A) provides, in pertinent part, that “[t]he overriding purposes of felony sentencing are to protect the public from future crime by the offender and others, to punish the offender, and to promote the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local govern ment resources.” Thus, despite R.C. 2929.14(C)(4) not mentioning R.C. 2929.11, R.C. 2929.14(C) (4) clearly utilizes language from R.C. 2929.11. Therefore, we cannot say that Kirkendoll ha s demonstrated that the trial court failed to make the appropria te findings or engage in the correct analysis at the sentencing hearing. {¶40} Kirkendoll’s third assign ment of error is overruled.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED IN DENYING MR. KIRKENDOLL’S MOTION TO DISMISS IN VIOLATION OF ORC 2945.71 AND ORC 2945.72 AS WELL AS THE UNITED STATES AND STATE OF OHIO CONSTITUTIONS AS MR. KIRKENDOLL’S RIGHT TO A SPEEDY TRIAL WAS VIOLATED. {¶41} Kirkendoll argues in his fourth assignment of error that the tr ial court erred in denying his motion to dismiss based upon an alleged violation o f his right to a speedy trial. Essentially, Kirkendoll contends that the triple-count provisio n of R.C. 2945.71(E) applied and

he therefore had to be tried w ithin 90 days. He further assert s that that period exp ired prior to the15

day of trial. He maintains the State failed to meet its burden to demonstrate a tolling event or that the triple-count provisi on did not apply and he was accord ingly entitled to be discharged. {¶42} On the day of trial, Kirkendoll’s counsel made the following mo tion: “On behalf of my client only, he has argued that the time he was sitting d id not toll this case’s time, and he wished me to put that on the record, that we are past the 90 da ys to bring him to trial.” The State and the trial court then expre ssed their belief that Kirkendoll was “still sitting on a case out of Lorain Muni” and so the triple-count provision did not apply. The State also indicated that it

believed that that was also Kir kendoll’s counsel’s understandin g when they chose the trial date.

Kirkendoll’s counsel did not dis agree or object to the characte rization. The trial court denied the

motion. {¶43} The triple-count provision is app licable only to those defendan ts held in jail in lieu of bail solely on the pending charge. State v. MacDonald , 48 Ohio St.2d 66 (1976), paragraph one of the syllabus. As noted by Kirkendoll, the Sup reme Court has concluded that, when a defendant alleges in a mo tion that he was incarcerated s olely on the pending charge and then demonstrates he was not brought to trial within the limits of the triple-count provision, he has presented a prima facie case for discharge. State v. Butcher , 27 Ohio St.3d 28, 30-31 (1986). It is only at that point that a burden of production then falls upon the State. See id. at 31. Kirkendoll, however, did not allege that he was incarcerated so lely on the pending charges. Thus, we cannot say that Kirke ndoll established a prima facie c ase for discharge. See id. at 30-

31. Kirkendoll has not demonstrate d that the trial court erred in denying his motion to dismiss. {¶44} Kirkendoll’s fourth assignm ent of error is overruled.

ASSIGNMENT OF ERROR V

THE VERDICT IN THIS CASE IS AGAINST THE SUFFICIENCY OF THE EVIDENCE AND SHOULD BE REVERSED BECAUSE IT VIOLATES THE16

FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE CONSTITUTION OF THE STATE OF OHIO. {¶45} Kirkendoll appears to argue in his fifth assignment of error, w hile blending the concepts of sufficiency and manifest weight, that there was ins ufficient evidence concerning the menacing by stalking charge pertaining to the events of August 17, 2018. Specifically, Kirkendoll alleges that there was insufficient evidence of a pa ttern of conduct as the indictment was limited to August 17, 2018. {¶46} When reviewing the sufficiency of the evidence, this Court must review the evidence in a light most favorable to the prosecution to determ ine whether the evidence before

the trial court was suffici ent to sustain a conviction. State v. Jenks , 61 Ohio St.3d 259, 279 (1991). An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitt ed at trial to determine whether such evidence, if believed, would convince th e average mind of the defendant’s guilt beyond a reasonable doubt. The releva nt inquiry is whether, after viewing the evidence in a light most favorable t o the prosecution, any rational trier of fact could have found the essential eleme nts of the crime proven beyond a reasonable doubt.

Id . at paragraph two of the syllabus. {¶47} R.C. 2903.211(A)(1), the statute pr ohibiting menacing by stalki ng provides: No person by engaging in a pa ttern of conduct shall knowingly c ause another person to believe that the offender will cause physical harm to the other person or a family or household member of the other person or cause menta l distress to the other person or a family or house hold member of the other perso n. In addition to any other basis for the other person’s belief that the offender will cause physical harm to the other person or the other person’s family or househ old member or mental distress to the other person or the other person’s famil y or household member, the other person’s belief or mental distress may be bas ed on words or conduct of the offender that are directed at or identify a corp oration, association, or other organization that employs the other person or to which the other person belongs. {¶48} R.C. 2903.211(D)(1) defines “[ p]attern of conduct” as:17

[T]wo or more actions or incidents closely related in time, whe ther or not there has been a prior conviction based on any of those actions or in cidents, or two or more actions or incidents closely related in time, whether or n ot there has been a prior conviction based on any of those actions or incidents, di rected at one or more persons employed by or belonging to the same corporation, association, or other organization. Actions or incidents that prevent, obstruc t, or delay the performance by a public official, firefighter, rescuer, emergen cy medical services person, or emergency facility person of any authorized act with in the public official’s, firefighter’s, rescuer’s, emergency medical service s person’s, or emergency facility person’s official capacity, or the posting o f messages, use of intentionally written or verbal graphic gestures, or receipt of information or data through the use of any form of written communication or an elec tronic method of remotely transferring informa tion, including, but not limited t o, a computer, computer network, computer program, computer system, or telecom munications device, may constitute a “pattern of conduct.” {¶49} “R.C. 2903.211(D)(1) does not re quire that a pattern of conduc t be proved by events from at least two different days. Arguably, a pattern o f conduct could arise out of two or more events occurring on the sam e date, provided that there are sufficient intervals between

them.” K.N. v. Render , 9th Dist. Medina No. 19CA0018-M, 2019-Ohio-3981, ¶ 17, quotin g Wagner v. Holland , 5th Dist. Fairfield No. 15-CA-56, 2016-Ohio-5028, ¶ 30. {¶50} Viewing the evidence in a light most favorable to the prosecuti on, we conclude that sufficient evidence was presented whereby a trier of fact could conclude that Kirkendoll engaged in a pattern of conduct, as defined by the statute, on August 17, 2018. The record discloses two separate inciden ts involving Kirkendoll on August 17, 2018. First, around noon, Kirkendoll and the victim had an argument which escalated into Kirkendoll threatening to kill

the victim. Kirkendoll also t ook the victim’s phone. The vict im fled the apartment and Kirkendoll followed her. The two struggled and Kirkendoll trie d to drag the victim back into the apartment. During that struggle, the victim’s arm was broken. The victim was able to escape and ultimately repor ted the incident to the police.18

{¶51} When the victim left the police station, she was too afraid to return to the apartment. Around 6:30 p.m., police again responded to the vic tim’s apartment after the building manager reported that someone was trying to kick in the victim’ s apartment door. The apartment was empty when police arrived. Police reviewed security footag e and observed an individual identified as Kirkendoll forcibly kicking in the door to the vi ctim’s apartment, entering the apartment, and shortly thereafter exiting the apartment. When the officer contacted the victim, she was too afraid to go to the apartment eve n with police pres ence. {¶52} We can only conclude that the St ate presented sufficient eviden ce that Kirkendoll engaged in a pattern of conduct on August 17, 2018, and therefo re, given Kirkendoll’s limited argument on appeal, we also determine that sufficient evidence was presented to support

Kirkendoll’s conviction for menacing by stalking. {¶53} Kirkendoll’s fifth assign ment of error is overruled.

III. {¶54} Kirkendoll’s assignments of erro r are overruled. The judgment of the Lorain County Court of Comm on Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitu te the mandate, pursuant to Ap p.R. 27.19

Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

CALLAHAN, P. J. SCHAFER, J. CONCUR.

APPEARANCES: GIOVANNA V. BREMKE, Attorney at Law, for Appellant. DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assi stant Prosecuting Attorney, for Appellee.