[Cite as State v. Gall, 2019-Ohio-4907.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF LORAIN ) 

STATE OF OHIO 

 Appellee 

 v. 

PATRICK GALL 

 Appellant 

C.A. No. 18CA011445 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF LORAIN, OHIO 

CASE No. 18CR098906 

DECISION AND JOURNAL ENTRY 

Dated: December 2, 2019 

 

CALLAHAN, Presiding Judge. 

{¶1} Appellant, Patrick Gall, appeals his convictions by the Lorain County Court of 

Common Pleas. This Court affirms. 

I. 

{¶2} On July 6, 2018, W.F. was shot at close range in an overgrown area behind a 

business in Elyria. His injuries proved to be fatal. A series of security cameras captured the 

crime on video, and Mr. Gall was soon taken into custody along with two other men. Mr. Gall 

was charged with aggravated murder in violation of R.C. 2903.01(A), murder in violation of 

R.C. 2903.02(A) and (B), felonious assault in violation of R.C. 2903.11(A)(1) and (A)(2), and 

tampering with evidence in violation of R.C. 2921.12(A)(1). Each charge was accompanied by 

a firearm specification. Prior to trial, Mr. Gall moved to dismiss all of the charges against him, 

arguing that he had not been brought to trial within the time period provided by R.C. 2945.71(C). 

The State informed the trial court that Mr. Gall was also being held on a holder issued from 
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Cuyahoga County. The trial court denied the motion to dismiss, but agreed to seat a jury within 

the ninety-day time period provided by R.C. 2945.71(E) nonetheless. 

{¶3} The jury found Mr. Gall guilty of all of the charges and specifications. The trial 

court merged the murder and felonious assault charges with the aggravated murder charge for 

purposes of sentencing and sentenced Mr. Gall to life in prison for aggravated murder and two 

years in prison for tampering with evidence, to be served concurrently. The trial court also 

sentenced him to consecutive prison terms for the two accompanying firearm specifications. Mr. 

Gall appealed. 

II. 

ASSIGNMENT OF ERROR NO. 1 

THE TRIAL COURT ERRED IN DENYING MR. GALL’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. 

GALL’S RIGHT TO A SPEEDY TRIAL WAS VIOLATED. 

{¶4} In his first assignment of error, Mr. Gall argues that the trial court erred by 

denying his motion to dismiss for a violation of his right to a speedy trial. This Court does not 

agree. 

{¶5} “When a trial court denies a motion to dismiss on speedy trial grounds, this Court 

reviews questions of law de novo, but considers whether the trial court’s factual determinations 

are clearly erroneous.” State v. Burroughs, 9th Dist. Lorain No. 14CA010595, 2016-Ohio-1139, 

¶ 4, citing State v. Downing, 9th Dist. Summit No. 22012, 2004-Ohio-5952, ¶ 36. Under R.C.

2945.71(C)(2), an individual charged with a felony must be brought to trial within 270 days after 

arrest. R.C. 2945.71(E) provides that for purposes of calculating this time period, “each day 

during which the accused is held in jail in lieu of bail on the pending charge shall be counted as 

three days.” This “triple-count” provision, however, only applies when the defendant is being 
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held solely on the charge at issue. State v. McDonald, 48 Ohio St.2d 66 (1976), paragraph one of 

the syllabus. When a defendant is also held under a parole holder, the triple-count provision 

does not apply because a parole violation is a separate offense. State v. Brown, 64 Ohio St.3d 

476, 479 (1992); Burroughs at ¶ 4. 

{¶6} Mr. Gall does not dispute that if the State had 270 days after his arrest in which to 

bring him to trial, his speedy trial rights were not violated. Consequently, he has argued that by 

operation of the triple-count provision of R.C. 2945.71(E), he was not brought to trial within 

ninety days. 

{¶7} Mr. Gall’s first argument is that the trial court erred by denying his motion to 

dismiss because the State failed to demonstrate the existence of a holder. When the parties 

appeared before the trial court to address the speedy trial issue, however, Mr. Gall did not 

dispute the existence of the holder from Cuyahoga County. Instead, his attorney acknowledged 

that a valid holder had been placed on Mr. Gall and informed the trial court that he had been 

aware of the holder since Mr. Gall was arraigned. Under these circumstances, this Court may 

presume that the facts support the trial court’s decision to deny the motion to dismiss. State v. 

Nixon, 9th Dist. Lorain Nos. 00CA007638, 00CA007624, 2001 WL 422885, *9 (Apr. 25, 2001), 

citing Brown at 481. In addition, however, the State also stated the following on the record: 

The fact of the matter is, Your Honor, since July 12th, [Mr. Gall] has had a holder 

on him. It’s been filed with the jail from the Cuyahoga County Sheriff’s 

Department, which lists, “This warrant is good. Please place hold. Thank you.” 

That was based on a juvenile case * * * with Judge Michael Ryan. Whereon, the 

11th day of January, 2018, the defendant failed to appear. It says, “The Court 

finds that the following parties were present for hearing: [R.L.], community 

control officer; [A.H.], the GAL for the child. Notwithstanding receipt of the 

notice, the child has failed to appear upon the calling of the case without good 

cause shown. Therefore, it is ordered said matter is continued indefinitely for the 

arrest of the child.” 
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That was based on a juvenile case in which [Mr. Gall] has already been 

committed to a locked facility, not DYS, for a period of time. This is a review 

hearing. That warrant has been out since January 12th of 2018.

Under these circumstances, this Court does not agree that the State failed to demonstrate the 

existence of the holder for the record, and Mr. Gall’s first argument is not well-taken. 

{¶8} Mr. Gall’s second argument is that a holder that originates from a juvenile court 

does not toll the triple-count provision for the reasons articulated by the Ohio Supreme Court in 

State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478. In Sanchez, the Supreme Court 

considered whether a detainer filed by the United States Bureau of Immigration and Customs 

Enforcement (“ICE”) prevented application of the triple-count provision. The terms of the ICE 

detainer were not part of the record, so in considering this question, it was necessary for the 

Supreme Court to look to federal law and policy to determine the effect of ICE detainers in 

general. See id. at ¶ 12-19. Having surveyed these resources, the Supreme Court reasoned that 

because an ICE detainer indicates that ICE will seek to hold the subject in custody upon release 

from confinement but does not hold the subject in custody, the triple-count provision remains 

applicable. Id. at ¶ 16-17. 

{¶9} In this case, the terms of the holder are reflected in the record. That holder 

subjected Mr. Gall to immediate arrest and detention while he was confined on the charges 

pending in this case. In other words, he was not held before trial solely on the charges at issue in 

this case, so the triple-count requirement of R.C. 2945.71(E) did not apply, and the State had 270 

days after Mr. Gall’s arrest in which to bring him to trial. 

{¶10} Mr. Gall’s final argument is that his trial did not commence on November 5, 

2018, because the trial court seated a jury, then continued the trial for eight days before 

proceeding. This Court need not reach the merits of this argument because whether the 
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commencement of trial is measured from the date the jury was seated or from the date that trial 

resumed, it is undisputed that Mr. Gall was brought to trial well within 270 days after the date of 

his arrest, as required by R.C. 2945.71(C)(2). 

{¶11} Mr. Gall’s first assignment of error is overruled. 

ASSIGNMENT OF ERROR NO. 2 

THE TRIAL COURT VIOLATED MR. GALL’S DUE PROCESS RIGHTS 

AND HIS RIGHT TO A FAIR TRIAL WHEN IT PERMITTED AND 

INSTRUCTED TWO DEPUTIES POSITIONED BESIDE MR. GALL DURING 

THE TRIAL IN THE PRESENCE OF THE JURY ERODING THE 

PRESUMPTION OF INNOCENCE. 

{¶12} Mr. Gall’s second assignment of error is that the trial court erred by permitting 

the presence of two uniformed deputy sheriffs in the courtroom during trial. This Court does not 

agree. 

{¶13} The presumption of innocence is a “basic component” of the fair trial that is 

guaranteed to criminal defendants by the Fourteenth Amendment. Estelle v. Williams, 425 U.S. 

501, 503 (1976). Courtroom practices that tend to erode the presumption of innocence, when 

“inherently prejudicial[,] * * * should be permitted only where justified by an essential state 

interest specific to each trial.” Holbrook v. Flynn, 475 U.S. 560, 568-569 (1986). On the other 

hand, some practices are not inherently prejudicial because they permit a “wider range of 

inferences that a juror might reasonably draw.” Id. at 569. 

{¶14} The deployment of identifiable law enforcement officers in a courtroom during 

trial is one such practice. Id. In concluding that this practice is not inherently prejudicial, the 

United States Supreme Court reasoned: 

While shackling and prison clothes are unmistakable indications of the need to 

separate a defendant from the community at large, the presence of guards at a 

defendant’s trial need not be interpreted as a sign that he is particularly dangerous 

or culpable. Jurors may just as easily believe that the officers are there to guard 
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against disruptions emanating from outside the courtroom or to ensure that tense 

courtroom exchanges do not erupt into violence. Indeed, it is entirely possible 

that jurors will not infer anything at all from the presence of the guards. If they 

are placed at some distance from the accused, security officers may well be 

perceived more as elements of an impressive drama than as reminders of the 

defendant’s special status. Our society has become inured to the presence of 

armed guards in most public places; they are doubtless taken for granted so long 

as their numbers or weaponry do not suggest particular official concern or alarm. 

Id. The State’s interest in deploying law enforcement officers in a courtroom is also “intimately 

related to the State’s legitimate interest in maintaining custody during the proceedings.” Id. at 

572. Turning to the question at hand in Holbrook, the Court concluded that there was not an 

unacceptable risk of prejudice to the defendant posed by “four such officers quietly sitting in the 

first row of a courtroom’s spectator section” during a trial of multiple defendants. Id. at 571. In 

that situation, the Court observed, “[f]our troopers are unlikely to have been taken as a sign of 

anything other than a normal official concern for the safety and order of the proceedings. 

Indeed, any juror who for some other reason believed defendants particularly dangerous might 

well have wondered why there were only four armed troopers to six defendants.” Id. 

{¶15} Even when courtroom security measures may pose a risk of eroding the 

presumption of innocence, the decision to implement them is entrusted to the discretion of the 

trial court. State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, ¶ 79, citing State v. Richey, 64 

Ohio St.3d 353, 358 (1992), abrogated on other grounds as noted in State v. McGuire, 80 Ohio 

St.3d 390, 402-403 (1997). Applying this standard, the Sixth District Court of Appeals has 

determined that the presence of a uniformed deputy sheriff in a courtroom does not deny a 

defendant a fair trial. State v. Washington, 6th Dist. Ottawa No. OT-12-032, 2014-Ohio-1008, ¶ 

19-20. The Eighth District Court of Appeals has concluded that the placement of one deputy 

sheriff near a defendant did not deny the defendant a fair trial and, in another case, that a 

defendant was not denied a fair trial when he was escorted to the witness stand by uniformed 
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deputies. State v. Gray, 8th Dist. Cuyahoga No. 92303, 2010-Ohio-240, ¶ 47; State v. Mitchell, 

8th Dist. Cuyahoga No. 56575, 1995 WL 527599, *7 (Sept. 7, 1995). Similarly, the Seventh 

District Court of Appeals has declined to reverse a conviction when the defendant argued that the 

presence of three deputy sheriffs in the courtroom denied him a fair trial “absen[t] * * * an 

affirmative demonstration of prejudice.” State v. Hill, 7th Dist. Columbiana No. 90-C-56, 1992 

WL 356182, *6-7 (Nov. 25, 1992). 

{¶16} In this case, defense counsel objected to the presence of two deputy sheriffs in the 

courtroom during the trial, and the following exchange with the trial court occurred: 

[DEFENSE COUNSEL]: Your Honor, I’m concerned if we have law 

enforcement sitting behind the defendant, it gives the impression to the jury - - I 

don’t like that. I mean, I don’t think it’s appropriate. He’s presumed innocent. 

THE COURT: I understand that. Well, where would you prefer - - I mean, I’m 

going to have somebody on that half of the courtroom. 

[DEFENSE COUNSEL]: Okay. 

THE COURT: He’s got to be in front of that rail to protect everybody here. 

[DEFENSE COUNSEL]: Okay. I’d just note my objection for the record. I’d 

like the record to indicate we have two Lorain County sheriff’s deputies in the 

courtroom, and I understand that. One is seated right behind the defendant, and I 

believe that gives the jury the impression that my - - I think it - - it’s challenging 

to the presumption of innocence, that gives the impression that he’s being 

surrounded by law enforcement. 

THE COURT: The Court will just clarify that statement in that there are two 

deputies, one on each side of the courtroom; as the defendant is on one side, that’s 

where one of the deputies is, and the other deputy is clear across the other side of 

the courtroom. 

[DEFENSE COUNSEL]: Agreed, Judge. 

Based on this exchange, it appears that the trial court determined that two deputies were needed 

to provide security during Mr. Gall’s trial and that they were not, as Mr. Gall now maintains, 

both positioned directly behind him. Instead, the record reflects that they stood on opposite sides 
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of the courtroom. With respect to the deputy who stood in close proximity to Mr. Gall, the trial 

court’s comments indicate that the deputy was positioned in front of the barrier that separated the 

spectators from the rest of the courtroom and that in the trial court’s opinion, the deputy’s 

presence there was necessary to protect the participants in the trial. Under these circumstances, 

the presence and position of the deputies were “unlikely to have been taken as a sign of anything 

other than a normal official concern for the safety and order of the proceedings.” Holbrook at 

571. The trial court’s decision to deploy the deputies in this way did not, therefore, deny Mr. 

Gall a fair trial. 

{¶17} Mr. Gall’s second assignment of error is overruled. 

ASSIGNMENT OF ERROR NO. 3 

THE TRIAL COURT VIOLATED MR. GALL’S RIGHT TO PRESENT A 

DEFENSE UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF 

THE UNITED STATES CONSTITUTION BY REFUSING TO GIVE THE 

JURY INSTRUCTIONS OF “RECKLESSLY” AND “NEGLIGENTLY.” 

{¶18} In his third assignment of error, Mr. Gall argues that the trial court erred by 

denying his request for jury instructions that included the definitions of negligent and reckless 

mental states. Specifically, he argues that although the culpable mental states at issue were 

purposely and knowingly, “the jury does not fully understand the mens rea that they are asked to 

decide[]” unless they are instructed on “all four * * * mental states.” This Court disagrees. 

{¶19} “[A] trial court must fully and completely give the jury all instructions which are 

relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact 

finder.” State v. Comen, 50 Ohio St.3d 206 (1990), paragraph two of the syllabus; R.C. 2945.11 

(“In charging the jury, the court must state to it all matters of law necessary for the information 

of the jury in giving its verdict.”) Although trial courts enjoy broad discretion in fashioning jury 

instructions, they must “present a correct, pertinent statement of the law that is appropriate to the 
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facts.” State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, ¶ 46, citing State v. Griffin, 141 

Ohio St.3d 392, 2014-Ohio-4767, ¶ 5, and State v. Lessin, 67 Ohio St.3d 487, 493 (1993). This 

Court reviews a trial court’s decision not to provide a requested jury instruction for an abuse of 

discretion. State v. Wolons, 44 Ohio St.3d 64, 68 (1989). An abuse of discretion is present when 

a trial court’s decision “‘is contrary to law, unreasonable, not supported by evidence, or grossly 

unsound.’” Menke v. Menke, 9th Dist. Summit No. 27330, 2015-Ohio-2507, ¶ 8, quoting Tretola 

v. Tretola, 3d Dist. Logan No. 8-14-24, 2015-Ohio-1999, ¶ 25. 

{¶20} The State of Ohio suggests that because Mr. Gall did not formally object after the 

jury instruction was given, but before the jury retired, he has forfeited all but plain error in 

connection with this assignment of error. Under Crim.R. 30(A), it is true that “a party may not 

assign as error the * * * failure to give any instructions unless the party objects before the jury 

retires to consider its verdict, stating specifically the matter objected to and the grounds of the 

objection.” When a party requests a jury instruction and the record demonstrates that the trial 

court has been fully apprised of the law governing the disputed instruction, however, the failure 

to formally object does not forfeit the issue on appeal. See Wolons at paragraph one of the 

syllabus. Mr. Gall’s attorney objected on the record after counsel discussed the instructions with 

the trial court in chambers. The substance of his objection is clear from the record, and both his 

attorney and the State of Ohio presented legal arguments to the trial court about the proposed 

instruction. We cannot conclude that Mr. Gall forfeited his objection under these circumstances. 

{¶21} Although a trial court must instruct the jury regarding the culpable mental state 

required by the offenses charged against a defendant, there is no corresponding duty to provide 

comparative instructions defining other culpable mental states. See State v. Howell, 137 Ohio 

App.3d 804, 815-816 (11th Dist.2000). See also State v. Vansickle, 12th Dist. Fayette No. 
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CA2013-03-005, 2014-Ohio-1324, ¶ 30; State v. Wood, 2d Dist. Greene No. 2006 CA 1, 2007-

Ohio-1027, ¶ 20-21. The intent behind a request for such instructions is “presumably to contrast 

[the culpable mental states] in the hope that the jury would find that [defendant’s] conduct rose 

to the former, but not to the more stringent latter state of mind.” Howell at 815. Although some 

courts have recognized that a comparative instruction regarding mental states could be helpful in 

limited circumstances, even those courts have declined to find error when a trial court’s 

instruction on the culpable mental state required for commission of the charged offense is 

consistent with the statutory definition. See State v. D.H., 169 Ohio App.3d 798, 206-Ohio6953, ¶ 36 (10th Dist.); Wood at ¶ 21-22. 

{¶22} In this case, the trial court instructed the jury regarding the relevant mental states 

by defining actions that are done purposely and knowingly in terms that tracked the language of 

the applicable statutes. In this respect, therefore, the trial court provided the jury with all of the 

necessary and relevant instructions to discharge its duty. See Comen, 50 Ohio St.3d 206 at 

paragraph two of the syllabus; R.C. 2945.11. The trial court did not abuse its discretion by 

omitting the definitions of reckless and negligent conduct from the jury instructions. 

{¶23} Mr. Gall’s third assignment of error is overruled. 

III. 

{¶24} Mr. Gall’s assignments of error are overruled. The judgment of the Lorain 

County Court of Common Pleas is affirmed. 

Judgment affirmed. 

 There were reasonable grounds for this appeal. 
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 We order that a special mandate issue out of this Court, directing 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 constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court 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 parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 LYNNE S. CALLAHAN 

 FOR THE COURT 

CARR, J. 

SCHAFER, J. 

CONCUR. 

APPEARANCES: 

GIOVANNA A. BREMKE, Attorney at Law, for Appellant. 

DENNIS P. WILL, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting 

Attorney, for Appellee.