[Cite as State v. Heatherington, 2022-Ohio-1375.]

COURT OF APPEALS

RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellee

-vsCOLBY HEATHERINGTON

Defendant-Appellant

JUDGES:

Hon. Earle E. Wise, Jr., P. J.

Hon. W. Scott Gwin, J.

Hon. John W. Wise, J. 

Case No. 2021 CA 0021

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common 

Pleas, Case No. 2020 CR 0233 R

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 22, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GARY BISHOP DARIN AVERY

PROSECUTING ATTORNEY 105 Sturges Avenue

OLIVIA BOYER Mansfield, Ohio 44903

ASSISTANT PROSECUTOR

38 South Park Street, Second Floor

Mansfield, Ohio 44902
Richland County, Case No. 2021 CA 0021 2

Wise, John, J.

{¶1} Defendant-Appellant Colby Heatherington (“Appellant”) appeals his 

conviction and sentence entered in the Richland County Court of Common Pleas on one

count of Felonious Assault in violation of R.C. §2903.11(A)(1), one count of Abduction in 

violation of R.C. §2905.02(A)(2), one count of Assault in violation of R.C. §2903.13(A), 

and Aggravated Menacing in violation of R.C. §2903.21(A) following a jury trial. Appellee 

is the state of Ohio. The relevant facts leading to this appeal are as follows.

STATEMENT OF THE FACTS AND CASE

{¶2} On February 28, 2020, Mansfield Police arrested Appellant in connection

with an alleged assault. 

{¶3} On April 8, 2020, Appellant was indicted on six counts: Count 1, Felonious 

Assault, a second-degree felony in violation of R.C. §2903.11(A)(1); Count 2, Felonious 

Assault, a second-degree felony in violation of R.C. §2903.11(A)(2); Count 3, Abduction, 

a third-degree felony in violation of R.C. §2905.02(A)(2); Count 4, Abduction, a thirddegree felony in violation of R.C. §2905.02(B); Count 5, Assault, a first-degree 

misdemeanor in violation of R.C. §2903.13(A); and Count 6, Aggravated Menacing, a 

first-degree misdemeanor in violation of R.C. §2903.21(A).

{¶4} On June 17, 2020, Appellant’s counsel moved for a court evaluation of 

Appellant’s competency to stand trial and assist in his defense.

{¶5} On July 6, 2020, the trial court ordered an evaluation on Appellant’s 

competency to stand trial.
Richland County, Case No. 2021 CA 0021 3

{¶6} On December 10, 2020, after a competency evaluation, the trial court held 

a hearing on Appellant’s capacity to stand trial. Both parties stipulated to Appellant’s 

competency. 

{¶7} On March 8, 2020, a jury trial commenced.

{¶8} At trial, Appellee first called dispatcher Ashley Jeffrey to testify. Jeffrey 

testified that on February 28, 2020, she took an emergency call of a female being 

assaulted. Jeffrey described the female caller as petrified. The caller, the victim, identified 

herself. The victim told Jeffrey she had locked herself in the bathroom trying to get away 

from her attacker.

{¶9} The victim identified Appellant as her attacker. On the call, the victim said 

she thought Appellant would kill her. The victim described Appellant to Jeffrey and what 

he was wearing.

{¶10} Next, Officer Eric Schaaf testified that he is a member of the Mansfield 

Police Department and was working on February 28, 2020, with his partner, Officer Jake 

Reitschlin. Upon arriving at the victim’s address, the victim came running out of the 

bathroom toward the officers. The victim was covered in blood and did not want the police 

to leave her. Reitschlin stayed with the victim while Schaaf did a sweep of the apartment 

and ascertained Appellant was not present in the apartment. Schaaf testified that he took 

photographs at the scene. These included pictures of the victim’s injuries, pictures of the 

scene showing blood, pictures of a pill bottle containing white powder and a rolled up 

$100 bill, and a large knife on the bed.

{¶11} Schaaf continued that when he came down to the front of the apartment 

building, Officers Blair and Rogers were already waiting with Appellant. At that point 
Richland County, Case No. 2021 CA 0021 4

Officer Reitschlin read Appellant his Miranda rights. Schaaf then identified Appellant as 

the man apprehended on February 28, 2020. 

{¶12} Next, Schaaf identified more photographs of Appellant, his clothing, and 

blood on Appellant’s clothing. 

{¶13} Schaaf then determined after reading Appellant his rights, it would be 

fruitless to talk with him, so they took him to jail. En route to jail, Schaaf asked Appellant 

about the incident. Appellant said he strangled her because she asked him to leave her 

apartment.

{¶14} Next, Eric Buchanan testified he is a paramedic with the Mansfield Fire 

Department. When he arrived on scene, the victim told him she wanted to be transported 

to the hospital to be treated for her injuries. She indicated she had been drinking alcohol 

and using drugs.

{¶15} Rachel Muir then testified that she is employed as a nurse practitioner at 

Mansfield Hospital. Muir testified that the victim suffered significant swelling and 

periorbital edema around her eye and right jaw, pain in her chest wall, pain in her left 

hand and wrist. Rachel Muir continued that her drug screen showed she had alcohol, 

benzodiazepine, THC, and opiates in her system.

{¶16} Next, Officer Clay Blair testified he is employed by the Mansfield Police 

Department. On February 28, 2020, Blair contacted Appellant after receiving a description 

of Appellant and a request from Officer Schaaf to contact the individual. Officer Blair 

instructed the Appellant to remove his hands from his pockets and to approach Officer 

Blair. Appellant was not really listening, and attempted to continue to walk away from the 

officers. At this point Officer Blair repeated the request and said he detained Appellant. 
Richland County, Case No. 2021 CA 0021 5

{¶17} While detained, Officer Blair began questioning Appellant about the 

incident. At this point Appellant simply said, “I did it.” Officer Blair testified after Appellant 

admitted to committing the assault, he continued to talk with Appellant. Officer Blair put 

Appellant in the back of his police car, continued to talk to him as Appellant was 

transported to Officer Schaaf, and recorded the conversation.

{¶18} While in the car, Appellant said the victim’s face is going to be black on one 

side as he kept hitting her on that side, and that she can take a hit. Officer Blair never 

read Appellant Miranda warnings.

{¶19} Next, Dawn Frybeck, a DNA analyst in the Mansfield Police Department’s 

crime laboratory testified according to her analysis, Appellant could not be excluded as a 

major contributor to the DNA found around the victim’s neck.

{¶20} Appellee then rested its case.

{¶21} Appellee dismissed Count 2.

{¶22} The jury returned a verdict of guilty on Counts 1, 3, 5, 6, and a verdict of not 

guilty on Count 4.

{¶23} The trial court sentenced Appellant to eight to twelve years in prison on 

Count 1, thirty-six months in prison on Count 3, six months in jail on Count 5, and six 

months in jail on Count 6. Counts 1 and 3 are to run consecutively, and Counts 5 and 6 

are to run concurrently for an aggregate sentence of eleven to fifteen years.
Richland County, Case No. 2021 CA 0021 6

ASSIGNMENT OF ERROR

{¶24} Appellant timely filed a notice of appeal. He herein raises the following six 

Assignments of Error:

{¶25} “I. THE COURT ERRED IN SENTENCING THE DEFENDANT 

SEPARATELY FOR FELONIOUS ASSAULT AND ABDUCTION.

{¶26} “II. THE COURT ERRED IN FINDING THE DEFENDANT COMPETENT 

TO STAND TRIAL.

{¶27} “III. APPELLANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF 

COUNSEL.

{¶28} “IV. THE COURT ERRED IN ALLOWING UNSCIENTIFIC EXPERT 

OPINION IN THE GUISE OF SCIENTIFIC OPINION IN VIOLATION OF EVID.R. 702.

{¶29} “V. THE COURT VIOLATED APPELLANT’S RIGHT TO CONFRONT THE 

WITNESS AGAINST HIM.

{¶30} “VI. THE COURT ERRED IN SENTENCING HEATHERINGTON TO AN 

INDEFINITE NON-LIFE SENTENCE.”

{¶31} For the purpose of judicial economy, we will address Appellant’s 

assignments of error out of order.

II.

{¶32} In Appellant’s Second Assignment of Error, Appellant argues the trial court 

erred in finding Appellant competent to stand trial. We disagree.

{¶33} A trial court’s decision on competency will not be disturbed absent an abuse 

of discretion. State v. Clark, 71 Ohio St.3d 466, 469, 1994-Ohio-43, 644 N.E.2d 331. The 

abuse of discretion standard is more than an error of judgment; it implies the court ruled 
Richland County, Case No. 2021 CA 0021 7

arbitrarily, unreasonably, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 

450 N.E.2d 1140 (1983). Therefore, an appellate court will not overrule the trial court’s 

competency determination if the record contains credible, reliable evidence in support of

the trial court’s determination that the defendant understood the nature and objective of

the proceedings against him. State v. Williams, 23 Ohio St.3d 16, 19, 490 N.E.2d 906 

(1986). 

{¶34} Due process requires a criminal defendant be competent to stand trial. State 

v. Smith, 4th Dist. Pickaway No. 19CA33, 2021-Ohio-2866, ¶14 citing State v. Lechner, 

4

th Dist. Highland No. 19CA3, 2019-Ohio-4071, ¶25; State v. Berry, 72 Ohio St.3d 354, 

359, 1995-Ohio-310, 650 N.E.2d 433. “It has long been accepted that a person who lacks 

the capacity to understand the nature and object of the proceedings against him, to 

consult with counsel, and to assist in preparing his defense may not be subjected to a 

trial.” Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d103 (1975). Thus, 

“[c]onviction of an accused while he or she is legally incompetent is a violation of due 

process.” Smith, 2021-Ohio-2866 at ¶14, citing State v. Merryman, 4th Dist. Athens No. 

12CA28, 2013-Ohio-4810, ¶14.

{¶35} “The United States Supreme Court established the test for competency and 

requires the court determine if an accused ‘has sufficient present ability to consult with 

his lawyer with a reasonable degree of rational understanding – and whether he has a 

rational as well as factual understanding of the proceedings against him.’ ” Id. at ¶15 citing 

Lechner, supra at ¶26, quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 789 

4. L.Ed.2d 824 (1960). 
Richland County, Case No. 2021 CA 0021 8

{¶36} R.C. §2945.37(G) states:

A defendant is presumed to be competent to stand trial. If, after a 

hearing, the court finds by a preponderance of the evidence that, because 

of the defendant’s present mental condition, the defendant is incapable of 

understanding the nature and objective of the proceedings against the 

defendant or of assisting in the defendant’s defense, the court shall find the 

defendant incompetent to stand trial and shall enter an order authorized by 

section 2945.38 of the Revised Code.

{¶37} Therefore, if a defendant is capable of understanding the nature and 

objective of the proceedings and assisting in the defense, then the defendant is 

competent to stand trial. “ ‘Incompetency must not be equated with mere mental or 

emotional instability or even with outright insanity. A defendant may be emotionally 

disturbed or even psychotic and still be capable of understanding the charges against him 

and of assisting his counsel.’ ” Smith, supra at ¶16 quoting Lechner, supra, quoting State 

v. Bock, 28 Ohio St.3d 108, 110, 502 N.E.2d 1016 (1986).

{¶38} In the case sub judice, both sides stipulated to the findings of a boardcertified forensic psychologist from Heartland Behavioral Healthcare. The report found 

Appellant had the capacity to participate in his own defense, that he understood the 

charges against him, the process, the meaning of the pleas of guilty and not guilty, the 

evidence to be presented, and the events that lead to the charges.

{¶39} Appellant stipulated to the report at a competency hearing on December 20, 

2020.
Richland County, Case No. 2021 CA 0021 9

{¶40} We conclude the trial court’s finding of competency was made after 

receiving a competency evaluation and holding a hearing on the matter. The 

determination was based on the detailed evaluation and report prepared by a boardcertified forensic psychologist. The report was stipulated to by the State and Appellant’s 

counsel. Based on our review, the record contains reliable, credible evidence to support 

the trial court’s decision that Appellant was competent to stand trial and/or enter a plea. 

We find the trial court did not abuse its discretion in determining Appellant was competent 

to stand trial.

{¶41} Appellant’s Second Assignment of Error is overruled.

III.

{¶42} In Appellant’s Third Assignment of Error, Appellant argues trial counsel was 

ineffective for failing to file for dismissal based on speedy trial statutes, for failing to file 

an NGRI, for failing to suppress statements and recordings made by Appellant, and failing 

to object to hearsay. We disagree.

a. Standard of Review

{¶43} Our standard is set forth in Strickland v. Washington (1984), 466 U.S. 668, 

104 S.Ct. 2052, 80 L.Ed.674. Ohio adopted this standard in the case of State v. Bradley

(1989), 42 Ohio St.3d 136, 538 N.E.2d 373. These cases require a two-pronged analysis 

in reviewing a claim for ineffective assistance of counsel. First, we must determine 

whether counsel’s assistance was ineffective; whether counsel’s performance fell below 

an objective standard of reasonable representation and was violative of any of his 

essential duties to the client. If we find ineffective assistance of counsel, we must then 

determine whether or not the defense was actually prejudiced by counsel’s 
Richland County, Case No. 2021 CA 0021 10

ineffectiveness such that the reliability of the outcome of the trial is suspect. This requires 

a showing there is a reasonable probability that, but for counsel’s unprofessional error, 

the outcome of the trial would have been different. Id.

{¶44} Trial counsel is entitled to a strong presumption that all decisions fall within 

the wide range of reasonable professional assistance. State v. Sallie (1998), 81 Ohio 

St.3d 673, 675, 693 N.E.2d 267. In addition, the United States Supreme Court and the 

Ohio Supreme Court have held a reviewing court “need not determine whether counsel’s 

performance was deficient before examining the prejudice suffered by the defendant as 

a result of the alleged deficiencies. Bradley at 143, 538 N.E.2d 373, quoting Strickland at 

697, 104 S.Ct. 2052. Even debatable trial tactics and strategies do not constitute 

ineffective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 

(1980). 

b. Speedy Trial

{¶45} Appellant first argues that trial counsel’s failure to file a motion to dismiss

pursuant to Ohio’s Speedy Trial Statutes. 

{¶46} Speedy trial provisions are mandatory and are encompassed within the 

Sixth Amendment to the United States Constitution. The availability of a speedy trial to a 

person accused of a crime is a fundamental right made obligatory on the states through 

the Fourteenth Amendment. State v. Ladd, 56 Ohio St.2d 197, 200, 383 N.E.2d 579 

(1978). “The statutory speedy trial provisions, R.C. §2945.71 et seq., constitute a rational 

effort to enforce the constitutional right to a public speedy trial of an accused charged with 

the commission of a felony or a misdemeanor and shall be strictly enforced by the courts 

of this state.” State v. Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589 (1980), syllabus.
Richland County, Case No. 2021 CA 0021 11

{¶47} Pursuant to R.C. §2945.71(C)(2), the State must bring a defendant to trial 

on felony charges within 270 days of arrest. The statutory speedy-trial period begins to 

run on the date the defendant is arrested, although the date of arrest is not counted when 

calculating speedy-trial time. State v. Wells, 8th Dist. Cuyahoga No. 98388, 2013-Ohio3722, ¶44, citing State v. Tatum, 3d Dist. Seneca No. 13-10-18, 2011-Ohio-3005. Once 

the statutory time limit has expired, the defendant has established a prima facie case for 

dismissal. State v. Butcher, 27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368 (1986). The burden 

then shifts to the state to demonstrate that sufficient time was tolled pursuant to R.C. 

§2945.72. Brecksville v. Cook, 75 Ohio St.3d 53, 55-56, 661 N.E.2d 706 (1996). If the 

state has violated a defendant’s right to a speedy trial, then the court must dismiss the 

charges against the defendant. R.C. §2945.72(B).

{¶48} Speedy trial time is tolled by those events listed in R.C. §2945.72. These 

events include any period of delay “necessitated by reason of a plea in bar or abatement, 

motion, proceeding, or action made or instituted by the accused, and any continuance 

granted upon the accused’s own motion[.]” R.C. §2945.72.

{¶49} A defendant’s demand for discovery tolls the speedy trial time until the state 

responds to the discovery, or for a reasonable time. State v. Shabazz, 8th Dist. Cuyahoga 

No. 95021, 2011-Ohio-2260, ¶26, 31; R.C. §2945.72(E). Courts have held this to be thirty 

days. State v. Crawford, 6th Dist. Lucas No. l-17-1297, 2019-Ohio-2660, ¶30. 

{¶50} Under the “triple-count provision” contained in R.C. 2945.71(E), each day a 

defendant spends in jail in lieu of bail counts as three days in the speedy trial time 

calculation. 
Richland County, Case No. 2021 CA 0021 12

{¶51} “The Ohio Attorney General has opined that courts may suspend jury trials 

to prevent the spread of the corona virus and they may do so consistent with state and 

federal speedy-trial obligations.” In re Disqualification of Paris, 161 Ohio St.3d 1285, 

2020-Ohio-6875, 164 N.E.3d 509, ¶5; quoting In re Disqualification of Fleegle, 161 Ohio 

St.3d 1263, 2020-Ohio-5636, 163 N.E.3d 609, ¶7; citing 2020 Atty.Gen.Ops. No. 2020-

002. In Fleegle, the Ohio Supreme Court held that trial judges have the authority to 

continue trials on a case-by-case basis without violating speedy-trial requirements and 

continuing a trial because of a pandemic state emergency is reasonable under 

R.C.2945.72(H). Id.

{¶52} When reviewing a speedy trial question, an appellate court must count the 

number of delays chargeable to each Appellant and Appellee. Next, the appellate court 

must determine whether the number of days not tolled exceeded the time limits under 

R.C. 2945.71. State v. Ferrell, 8th Dist. Cuyahoga No. 93003, 2010-Ohio-2882, ¶20. When 

reviewing legal issues presented in a speedy trial claim, we must strictly construe the 

relevant statutes against the state. Brecksville v. Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d 

706, 709 (1996); State v. Colon, 5th Dist. Stark No. 09-CA-232, 2010-Ohio-2326, ¶12.

{¶53} Below are the pertinent dates:

{¶54} On February 28, 2020, Appellant was arrested.

{¶55} Speedy trial time started on February 29, 2020.

{¶56} On March 5, 2020, the time was tolled as Appellant refused to go to the 

Municipal Court for a preliminary hearing.

{¶57} From March 9, 2020, through July 31, 2020, the time was tolled due to 

coronavirus.
Richland County, Case No. 2021 CA 0021 13

{¶58} From July 31, 2020, to December 16, 2020, the time was tolled as the trial 

court deliberated on Appellant’s competency to stand trial.

{¶59} From December 29, 2021, to January 8, 2021, time was tolled as Appellant 

filed a motion for a substitution of counsel.

{¶60} On February 26, 2021, the time was tolled as Appellant chose not to change 

his plea at a scheduled change of plea hearing, and a jury trial was scheduled for March 

8, 2021.

{¶61} On March 8, 2021, Appellant’s jury trial commenced. Therefore, time was 

not tolled for five days in March of 2020, fourteen days in December of 2021, twenty-four

days in January of 2021, twenty-six days in February of 2021. This totals sixty-nine days 

in jail awaiting trial equating to a total of 207 days under the triple-count provision of R.C. 

§2945.71(E).

{¶62} Nothing in the record suggests any additional time beyond the 207 days 

noted above should be considered for a violation for want of a speedy trial. The total of 

207 days does not exceed the 270-day threshold established by R.C. §2945.71(C)(2). As 

such, Appellant’s claim of ineffective assistance of counsel with respect to trial counsel’s 

failure to file a motion to dismiss for want of a speedy trial is overruled.

c. Not Guilty by Reason of Insanity

{¶63} Appellant argues that trial counsel was ineffective for failing to raise an 

insanity defense in the proceedings.

{¶64} “Where facts and circumstances indicate that a plea of not guilty by reason 

of insanity would have had a reasonable probability of success, it is ineffective assistance 

of counsel to fail to enter the plea.” State v. Brown (1992), 84 Ohio App.3d 414, 616 
Richland County, Case No. 2021 CA 0021 14

N.E.2d 1179. However, if the facts indicate that counsel was pursuing a reasonable 

strategy in not so pleading, or where the likelihood of success for the plea is low, the 

decision is not unreasonable. State v. Twyman, 2d Dist. Montgomery No. 19086, 2002-

Ohio-3558.

{¶65} “A person is ‘not guilty by reason of insanity’ relative to a charge of an 

offense only if the person proves [by a preponderance of the evidence] that at the time of 

the commission of the offense, the person did not know, as a result of a severe mental 

disease or defect, the wrongfulness of the person’s acts.” R.C. §2901.01(A)(14).

{¶66} In the case sub judice, Appellant points to nothing in the record which 

indicates he suffers from any type of mental illness at the time of the offense, or at any 

time in his life, as providing a basis for an insanity defense. In order to find trial counsel’s 

performance deficient, there must be some indication that a not guilty by reason of 

insanity plea would have “a reasonable probability of success” based on the facts and 

circumstances in the case. State v. Anaya, 6th Dist. Lucas No. L-06-1375, 2008-Ohio1853, ¶29, citing State v. Brown, 84 Ohio App.3d 414, 421, 616 N.E.2d 1179 (8th

Dist.1992).

{¶67} With nothing in the record to indicate mental illness, Appellant’s trial counsel 

was not deficient in failing to enter a plea of not guilty by reason of mental insanity. Anaya

at ¶29, citing State v. Twyman, 2d Dist. Montgomery No. 19086, 2002-Ohio-3558, ¶73. 

Trial counsel may not be held ineffective for failing to attempt a “futile act.” State v. Leu, 

6

th Dist. Lucas No. L-17-1265, 2019-Ohio-3404, ¶47. As such, Appellant’s claim of 

ineffective assistance of counsel with respect to trial counsel’s failure to enter a plea of 

not guilty by reason of insanity is overruled.
Richland County, Case No. 2021 CA 0021 15

d. Motion to Suppress

{¶68} Appellant argues that trial counsel’s failure to file a motion to suppress

Appellant’s statements made while in custody constituted ineffective assistance of 

counsel as he was not read Miranda warnings until after he confessed to committing the 

crime.

{¶69} “ ‘[F]ailure to file a suppression motion does not constitute per se ineffective 

assistance of counsel.’ ” State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000), 

quoting Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 

(1986); accord State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, 

¶126. “ ‘To establish ineffective assistance of counsel for failure to file a motion to 

suppress, a defendant must prove there was a basis to suppress the evidence in 

question.’ ” State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶65, 

citing State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶35. If the 

record contains no evidence to support a motion to suppress, or such little evidence that 

counsel could have decided that filing such a motion would be futile, then counsel is still 

considered effective. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 

N.E.2d 1038, ¶208, quoting State v. Gibson, 69 Ohio App.2d 91, 95, 430 N.E.2d 954 (8th

Dist.1980); State v. Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550, ¶28, quoting 

State v. Suarez, 12th Dist. Warren No. CA2014-02-035, 2015-Ohio-64, ¶13.

{¶70} The Fifth Amendment to the United States Constitution guarantees no 

person shall be compelled to be a witness against himself, and the Sixth Amendment to 

the United States Constitution guarantees the accused shall have the assistance of 

counsel. Miranda v. Arizona, 384 U.S. 436, 442, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1996). 
Richland County, Case No. 2021 CA 0021 16

The inherently coercive nature of custodial interrogation heightens the risk a suspect will 

be denied the Fifth Amendment privilege not to be compelled to incriminate himself 

because custodial interrogation can “undermine the individual’s will to resist and * * * 

compel him to speak where he would not otherwise do so freely.” J.D.B. v. North Carolina, 

564 U.S. 261, 269, 131 S.Ct. 2394, 2401, 180 L.Ed.2d 310 (2011), quoting Miranda at 

467; Dickerson v. United States, 530 U.S. 428, 435, 120 S.Ct. 2326, 147 L.Ed.2d 405 

(2000).

{¶71} In light of the inherent coercion involved in custodial interrogation, Miranda 

established “a set of prophylactic measures” to safeguard the constitutional privilege 

against self-incrimination. Dickerson at 435. Miranda held the State may not use a 

defendant’s statements from custodial interrogation “unless it demonstrates the use of 

procedural safeguards effective to secure the privilege against self-incrimination.” 

Miranda at 444, 86 S.Ct. 1602. Prior to questioning, the police must warn the suspect 

“that he has a right to remain silent, that any statement he does make may be used as 

evidence against him, and that he has a right to the presence of an attorney, either 

retained or appointed.” Id. In Miranda, the Supreme Court recognized the importance of 

a suspect’s “real understanding” of his rights and his intelligent decision whether to 

exercise them. Id. at 469.

{¶72} The sole remedy for a Miranda violation is the suppression of evidence 

which was derived from the violation. Bennet v. Passic (C.A.10, 1976), 545 F.2d 1260, 

1263; see Miranda, supra, 384 U.S. at 479.

{¶73} In Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 

(2004), the United States Supreme Court addressed that whether the technique of 
Richland County, Case No. 2021 CA 0021 17

successive interrogations, with Miranda warnings being read in between the 

interrogations, violated Miranda. In determining whether the second statement was 

admissible, the Court listed factors to consider: 

* * * the completeness and detail of the questions and answers in the first 

round of interrogation, the overlapping content of the two statements, the 

timing and setting of the first and the second, the continuity of police 

personnel, and the degree to which the interrogator’s questions treated the 

second round as continuous with the first. Id.

{¶74} Therefore, when Miranda warnings are given in the middle of a “coordinated 

and continuing interrogation”, they will likely mislead and “depriv[e] a defendant of 

knowledge essential to his ability to understand the nature of his rights and the 

consequences of abandoning them.” Id. quoting Moran v. Burbine, 475 U.S. 412, 424, 

106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). “[I]t would ordinarily be unrealistic to treat two 

spates of integrated and proximately conducted questioning as independent 

interrogations subject to independent evaluation simply because Miranda warnings 

formally punctuate them in the middle.” Seibert at 611-614.

{¶75} “Seibert points out that in ‘question first’ scenarios when the circumstances 

of the given case show that the Miranda warning could not reasonably be found effective, 

the post warning statements are inadmissible because ‘the earlier and later statements 

are realistically seen as part of a single, unwarned sequence of questioning.’ Id. at 612, 

542 U.S. 600, 124 S.Ct.2601, 159 L.Ed.2d 643, fn.4.” State v. Farris, 109 Ohio St.3d 519, 

2006-Ohio-3255, 849 N.E.2d 985.
Richland County, Case No. 2021 CA 0021 18

{¶76} In Seibert, the officer interrogated the defendant before reading her Miranda 

warnings. Seibert at 614-616. The officer then Mirandized the defendant, and immediately

presented the defendant with her previous statements to which the defendant also 

confessed. Id. The Supreme Court held, the objective of the question-first interrogation is 

to wait for an opportune time to give Miranda, after the suspect confesses.

{¶77} In the case sub judice, Officer Blair testified he detained Appellant as 

Appellant was attempting to walk away, ordered him to approach the officers, and take 

his hands out of his pocket. Within one minute of initiating contact with Appellant, Officer 

Blair handcuffed Appellant. After questioning Appellant while in handcuffs for nearly two 

minutes, Officer Blair asks Appellant for his side of the story. Appellant admits to the 

assault. After Officer Blair places Appellant, still restrained, in the back of the police car, 

Appellant continues with his confession. Appellant said that the victim grabbed her phone 

and hid in the bathroom, and he told her if she stayed still he would not beat her anymore. 

He said her nose was bleeding, and that he hit her above her eyebrow and she would be 

bleeding. Appellant continued that he bruised one side of the victim’s face because he 

only used one hand. Appellant then said the victim can “take a hit.” Officer Blair never 

gave Appellant Miranda warnings.

{¶78} About thirty-minutes after making contact with Appellant and within minutes 

of Officer’s Blairs interrogation of Appellant, Officer Schaaf took custody of Appellant. At 

this point the officers Mirandized Appellant. Appellant argued with Officer Schaaf and 

Officer Reitschlin about his rights, telling them he has a right to speak. 

{¶79} The officers decide questioning him would be pointless. Officer Schaaf 

placed Appellant in the back of his police car and transported him to jail. During the drive 
Richland County, Case No. 2021 CA 0021 19

to jail, Officer Schaaf asked Appellant about the assault. Appellant then told Officer 

Schaaf he assaulted and choked the victim. Officer Schaaf asked Appellant if he had a 

knife. Appellant denied having a knife.

{¶80} We find, based on the foregoing, that a reasonable probability exists that a 

motion to suppress Appellant’s statements before Miranda warnings were given would 

have been granted only to those statements made prior to Miranda. Appellant was in 

custody at the time the interrogation started when Officer Blair asked Appellant to tell his 

side of the story. Appellant admitted to assaulting the victim. While being transported, 

Appellant continued to tell his side of the story and did not stop until right before Officer 

Schaaf took custody. 

{¶81} After Appellant was Mirandized, he argued with officers about his right to 

remain silent, saying he had a right to speak. Therefore, he understood he did not have 

to say anything but wanted to tell his side of the story. Officer Schaaf then put Appellant 

in the back of a police car, where the officer asked Appellant about the incident. Appellant 

admitted to assaulting and choking the victim.

{¶82} In this case, the “mid-stream” Miranda warnings were effective enough to 

accomplish their objectives, making Appellant’s statements made to officer Schaaf 

admissible. Appellant was provided Miranda warnings, argued with police that he did not 

wish to remain silent, showing he understood what the officer was saying. The record 

shows no coordination of questioning or use of the question-first technique by officers. 

Therefore, Appellant’s statements made after Miranda warnings were issued, were 

properly admitted.
Richland County, Case No. 2021 CA 0021 20

{¶83} Appellant has not shown that he suffered prejudice by counsel’s failure to 

file a motion to suppress. The substance of the statements which would have been

suppressed due to a lack of Miranda warnings came in via Appellant’s post-Miranda

statements. Thus, Appellant has failed to establish the outcome of the trial would have 

been different.

{¶84} As such, Appellant’s claim of ineffective assistance of counsel regarding 

trial counsel’s failure to file a motion to suppress Appellant’s statements to law 

enforcement is overruled.

e. Failure to Object to Hearsay

{¶85} Appellant argues his counsel should have objected to certain hearsay 

statements made by Officer Schaaf regarding who caused the victim’s injuries.

{¶86} Upon review of the record, trial counsel did object to the testimony. The trial 

court admitted the statements under the excited utterance exception to the hearsay rule. 

Even assuming, arguendo, trial counsel should have renewed the objection and it would 

have been sustained, the jury heard the same statements and description of what 

occurred during Appellant’s post-Miranda confession. Crim.R. 52(A) defines harmless 

error as “[a]ny defect, irregularity, or variance which does not affect substantial rights shall 

be disregarded.” Before error can be considered harmless, we must be able to “declare 

a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 

U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Where no reasonable possibility exists 

that the unlawful testimony contributed to a conviction, the error is harmless and therefore 

will not be grounds for reversal. State v. Lytle, 48 Ohio St.2d 391, 358 N.E.2d 623 (1976), 

paragraph three of the syllabus, vacated on other grounds in Lytle v. Ohio, 438 U.S. 910, 
Richland County, Case No. 2021 CA 0021 21

98 S.Ct. 3135, 57 L.Ed.2d 1154 (1978). Therefore, we find no prejudice as a result of

counsel’s failure to renew his objection to Officer Schaaf’s testimony. As such, Appellant’s 

claim of ineffective assistance of counsel regarding trial counsel’s failure to object to 

hearsay is overruled.

{¶87} Appellant’s Third Assignment of Error is overruled.

IV.

{¶88} In Appellant’s Fourth Assignment of Error, Appellant argues the trial court 

erred in allowing the expert testimony of Dawn Fry to be introduced at trial. We disagree.

{¶89} Appellant claims Evid.R. 702(C) requires a blind tester for a DNA test to be 

reliable, but only cites R.C. §2933.83(D) in support.

{¶90} Evid.R. 702 states, in pertinent part:

A witness may testify as an expert if all of the following apply:

...

(C) The witness’ testimony is based on reliable scientific, technical, 

or other specialized information. To the extent that the testimony reports 

the result of a procedure, test, or experiment, the testimony is reliable only 

if all of the following apply:

(1) The theory upon which the procedure, test, or experiment is 

based is objectively verifiable or is validly derived from widely accepted 

knowledge, facts, or principles;

(2) The design of the procedure, test, or experiment reliably 

implements the theory;
Richland County, Case No. 2021 CA 0021 22

(3) The particular procedure, test, or experiment was conducted in a 

way that will yield an accurate result.

{¶91} R.C. §2933.83(D) states, “[t]he requirements in this section regarding the 

procedures for live lineups or photo lineups conducted by a law enforcement agency or 

criminal justice entity do not prohibit a law enforcement agency or criminal justice entity 

from adopting other scientifically accepted procedures for conducting live lineups or photo 

lineups that the scientific community considers more effective.”

{¶92} A plain reading of the statute permits law enforcement to conduct lineups 

that the scientific community considers more effective, but does not require it. This has 

no relevance regarding how an expert witness conducts his or her tests. Therefore, 

Appellant has presented no support that the trial court erred in admitting Dawn Fryback’s 

testimony.

{¶93} Appellant’s Fourth Assignment of Error is overruled.

V.

{¶94} In Appellant’s Fifth Assignment of Error, Appellant argues the trial court 

erred in inappropriately admitted hearsay evidence. We disagree.

{¶95} “Ordinarily a trial court is vested with broad discretion in determining the 

admissibility of evidence in any particular case, so long as such discretion is exercised in 

line with the rules of procedure and evidence.” Rigby v. Lake City, 58 Ohio St.3d 269, 271 

(1991). 
Richland County, Case No. 2021 CA 0021 23

a. Statements Made for Purpose of Medical Diagnosis or Treatment

{¶96} Evid.R. 803(4) states: 

Statements for Purposes of Medical Diagnosis or Treatment. 

Statements made for purposes of medical diagnosis or treatment 

and describing medical history, or past or present symptoms, pain, or 

sensations, or the inception or general character of the cause or external 

source thereof insofar as reasonably pertinent to diagnosis or treatment.

{¶97} Initially, we note that Appellant has failed to identify those portions of 

testimony where he claims Appellee’s elicited testimony went beyond disclosures 

necessary for diagnosis in violation of the rule against hearsay. Although he has failed to 

comply with App.R. 16(A)(7), we nonetheless address Appellant’s argument to the extent 

we are able to glean from his brief.

{¶98} As Appellant did not object to the testimony at the trial court proceedings, 

Appellant has waived all but plain error. An error not raised in the trial court must be plain 

error for an appellate court to reverse. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 

(1978) at paragraph one of the syllabus; Crim.R. 52(B). To prevail under a plain error 

analysis, Appellant bears the burden of demonstrating that the outcome of the trial clearly

would have been different but for the error. Id. at paragraph two of the syllabus. Notice of 

plain error “is to be taken with the utmost caution, under exceptional circumstances and 

only to prevent a manifest miscarriage of justice.” Id. at paragraph three of the syllabus.

{¶99} Appellant’s argument seems to be any statement made by the victim 

through the course of treatment is inadmissible hearsay because the statements went 

beyond diagnosis and the victim had benzodiazepine, cannabinoid, opiate, oxycodone, 
Richland County, Case No. 2021 CA 0021 24

and alcohol in the victim’s system. Appellant offers no support for this argument. “The test 

under Evid.R. 803(4) goes solely to whether a statement was made for purposes of 

medical diagnosis or treatment.” State v. Dever, 64 Ohio St.3d 401, 404, 1992-Ohio-41,

596 N.E.2d 436.

{¶100} Upon review, any testimony the victim made in her hospital file to doctors 

regarding her condition, the cause of, or identification of the perpetrator was properly 

admitted under the Statements for Purposes of Medical Diagnosis or Treatment. Evid.R. 

803(4). 

b. Officers testimony on victim identification

{¶101} Appellant also alludes to statements made by the victim to Officer Schaaf 

identifying Appellant as her attacker should not have been admitted. These statements 

were objected to and the trial court admitted them as an excited utterance exception to 

the hearsay rule.

{¶102} Evid.R. 803(2) states, “Excited Utterance. A statement relating to a 

startling event or condition made while the declarant was under the stress of excitement 

caused by the event or condition.”

{¶103} A statement being entered under the Evid.R. 803(2) exception to the 

hearsay rule does not depend on the availability of the declarant as a witness. State v. 

Eutsey, 5th Dist. Stark No. 2020 CA 00152, 2021-Ohio-3913, ¶47.

{¶104} In the case sub judice, the state laid a foundation for the statement’s 

admission. Officer Schaaf testified to the victim identifying Appellant as her attacker while 

the victim was still under the stress of having been beaten, strangled, and chased into 

her bathroom by Appellant. The officer described the victim as petrified, upset, crying, 
Richland County, Case No. 2021 CA 0021 25

and afraid to be left alone. Therefore, upon a review of the record we find Officer Schaaf’s 

testimony was properly admitted as an excited utterance under Evid.R. 803(2).

{¶105} Appellant’s Fifth Assignment of Error is overruled.

I.

{¶106} In Appellant’s First Assignment of Error, Appellant argues the trial court 

erred in declining to merge felonious assault and abduction. We disagree.

{¶107} The jury found Appellant guilty of Felonious Assault in violation of R.C. 

§2903.11(A)(1) which states: “No person shall do either of the following: (1) Cause 

serious physical harm to another or to another’s unborn[.]” The jury also found Appellant 

guilty of Abduction in violation of R.C. §2905.02(A)(2) which states: “No person, without 

privilege to do so, shall knowingly do any of the following: * * * By force or threat, restrain 

the liberty of another person under circumstances that create a risk of physical harm to 

the victim or place the other person in fear[.]”

{¶108} Appellant argues the trial court erred in refusing to merge the two 

convictions in violation of R.C. §2941.25, which states the following:

(A) Where the same conduct by defendant can be construed to 

constitute two or more allied offenses of similar import, the indictment or 

information may contain counts for all such offenses, but the defendant may 

be convicted of only one.

(B) Where the defendant’s conduct constitutes two or more 

offenses of dissimilar import, or where his conduct results in two or more 

offenses of the same or similar kind committed separately or with a separate 
Richland County, Case No. 2021 CA 0021 26

animus as to each, the indictment or information may contain counts for all 

such offenses, and the defendant may be convicted of all of them.

{¶109} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, 

syllabus, the Supreme Court of Ohio held:

1. In determining whether offenses are allied offenses of similar 

import within the meaning of R.C. 2841.25, courts must evaluate three 

separate factors - the conduct, the animus, and the import.

2. Two or more offenses of dissimilar import exist within the 

meaning of R.C. 2841.25(B) when the defendant’s conduct constitutes 

offenses involving separate victims or if the harm that results from each 

offense is separate and identifiable.

3. Under R.C. 2941.25(B), a defendant whose conduct supports 

multiple offenses if any one of the following is true: (1) the conduct 

constitutes offenses of dissimilar import, (2) the conduct shows that the 

offenses were committed separately, or (3) the conduct shows that the 

offenses were committed with separate animus.

{¶110} In paragraph 26 of the opinion, the Ruff court stated:

At its heart, the allied-offense analysis is dependent upon the facts 

of a case because R.C. 2941.25 focuses on the defendant’s conduct. The 

evidence at trial or doing a plea or sentencing hearing will reveal whether 

the offenses have similar import. When a defendant’s conduct victimizes 

more than one person, the harm for each person is separate and distinct, 

and therefore, the defendant can be convicted of multiple counts. Also, a 
Richland County, Case No. 2021 CA 0021 27

defendant’s conduct that constitutes two or more offenses against a single 

victim can support multiple convictions if the harm that results from each 

offense is separate and identifiable from the harm of the other offense. We 

therefore hold that two or more offenses of dissimilar import exist within the 

meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes 

offenses involving separate victims or if the harm that results from each 

offense is separate and identifiable. Id.

{¶111} Offenses that occur close in time and proximity may still “involve separate 

conduct for purposes of an allied offense analysis.” State v. Black, 8

th Dist. No. 102586, 

2016-Ohio-383, 58 N.E.3d 561, ¶27, discretionary appeal not allowed, State v. Black, 145 

Ohio St.3d 1461, 2016-Ohio-2807, 49 N.E.3d 322. 

{¶112} In State v. Boyd, 8th Dist. Cuyahoga No. 109052, 2020-Ohio-5181, ¶45, 

appeal not allowed, 162 Ohio St.3d 1438, 2021-Ohio-1399, 166 N.E.3d 1258, ¶45, the 

defendant’s acts of felonious assault and abduction arose close in time and proximity, 

were against the same victim, and even if they arose from same animus, the offenses 

were committed separately. After a failed attempt to kill his wife, committing felonious 

assault, she attempted to escape to the neighbor’s house. The defendant then, 

committing abduction, knowingly used force to restrain the victim by dragging her by her 

neck back to their house. The defendant then tried to run his wife over with a car, 

committing a second felonious assault. The Eighth District Court of Appeals held 

Appellant’s separate acts support the conclusion that the felonious assaults and 

abduction offenses are not allied offenses of similar import. 
Richland County, Case No. 2021 CA 0021 28

{¶113} In the case sub judice, although the felonious assault and abduction 

happened in close proximity and time, they were committed separately. Appellant beat 

and strangled the victim to the point she passed out, committing a felonious assault. Upon 

regaining consciousness, the victim escaped to the bathroom. Appellant then told the 

victim he would not beat her again if she remained in the bathroom, by threat, restraining 

the victim’s liberty, committing the crime of abduction. Therefore, these two offenses do 

not merge as they were committed separately. Appellant’s separate acts support the trial 

court’s finding that the felonious assault and abduction offenses are not allied offenses of 

similar import.

{¶114} Appellant’s First Assignment of Error is overruled.

VI.

{¶115} Appellant’s Sixth Assignment of Error summarily challenges the 

constitutionality of the Reagan Tokes Act, which codified hybrid indefinite prison terms for 

first- and second- degree felonies. Appellant generally alleges that indefinite sentences 

giving ODRC “the role of judge, jury, and executioner” violates the right to due process 

and the separation of powers doctrine. Appellant’s brief 15.

{¶116} This Court has previously found this type of challenge to not yet be ripe for 

review. State v. Downard, 5th Dist. Muskingum, CT2019, 2020-Ohio-4227, appeal 

allowed, 160 Ohio St.3d 1507, 2020-Ohio-6835, 159 N.E.3d 1152. However, the Ohio 

Supreme Court found that the issue of the constitutionality of an indeterminate sentence 

imposed under R.C. §2967.271 ripens at the time of sentencing and that the law may be 

challenged on direct appeal. State v. Maddox, 2022-Ohio-764, ¶21. 
Richland County, Case No. 2021 CA 0021 29

{¶117} As the challenge is ripe for review, this Court looks to analyze Appellant’s 

argument, analysis and support. Appellant summarily argues that his indefinite prison 

term violated due process and separation of powers. His argument lacks any specific 

reference to the record or citations to legal authority in support of an argument. See, State 

v. Gulley, 5th Dist. Stark No. 2006CA00114, 2008-Ohio-887, ¶12.

{¶118} Appellant has the burden of demonstrating an error on appeal. See, App.R. 

16(A)(7). “It is the duty of the appellant, not this court, to demonstrate his assigned error 

through an argument that is supported by citations to legal authority and facts in the 

record.” State v. Untied, 5th Dist. No. CT2006-0005, 2007-Ohio-1804, at ¶141. See, also, 

App.R. 16(A)(7).

{¶119} The constitutionality of indefinite sentencing has previously been 

challenged on several bases, but we are not at liberty to make Appellant’s arguments for

him. “If an argument exists that can support [an] assignment of error, it is not this court’s 

duty to root it out.” State v. Romy, 5th Dist. Stark No. 2020 CA 00066, 2021-Ohio-501, 

168 N.E.3d 86, ¶35, citing Thomas v. Harmon, 4th Dist. Lawrence No. 08CA17, 2009-

Ohio-3299, ¶14. Therefore, “[w]e may disregard any assignment of error that fails to 

present any citations to case law or statutes in support of its assertions.” Id., citing Frye 

v. Holzer Clinic, Inc., 4th Dist. Gallia No. 07CA4, 2008-Ohio-2194, ¶12; see, also, App.R. 

16(A)(7); App.R.12(A)(2).
Richland County, Case No. 2021 CA 0021 30

{¶120} Appellant’s Sixth Assignment of Error is overruled.

{¶121} For the foregoing reasons, the judgment of the Court of Common Pleas, 

Richland County, Ohio, is hereby, affirmed.

By: Wise, John, J.

Wise, Earle, P. J., and

Gwin, J., concur.

JWW/br 0411