[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 Ga ll, 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 a rea 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 m urder 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 v iolation of R.C. 2921.12(A)(1). Each charge was accompanied by a firearm specification. Prior t o trial, Mr. Gall moved to dis miss all of the charges against him, arguing that he had not been brou ght to trial within the time p eriod provided by R.C. 2945.71(C). The State informed the trial court that Mr. Gall was also being held on a holder issued from2

Cuyahoga County. The trial court denied the motion to dismiss, but agreed to seat a jury within the ninety-day time perio d provided by R.C. 2945.71(E) nonethel ess. {¶3} The jury found Mr. Gall guilty of all of the charges and specif ications. The trial court merged the murder and fel onious 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 w ith evidence, to be served concu rrently. The trial court also sentenced him to consecutive prison terms for the two accompany ing 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 tria l 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 tri al 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 brou ght to trial within 270 days after arrest. R.C. 2945.71(E) provides that for purposes of calculat ing 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 appl ies when the defendant is being3

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 hol der, 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 p rovision 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 deny ing his motion to

dismiss because the State failed to demonstrate the existence o f a holder. When the parties appeared before the trial court to address the speedy trial iss ue, however, Mr. Gall did not dispute the existence of the holder from Cuyahoga County. Inst ead, his attorney acknowledged that a valid holder had been placed on Mr. Gall and informed th e 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 th e trial court’s decision to de ny 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 S tate also sta ted the foll owing on the record: The fact of the matter is, Your Honor, since July 12th, [Mr. Ga ll] 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 h old. Thank you.” That was based on a juvenile case * * * with Judge Michael Ryan . Whereon, the 11th day of January, 2018, the de fendant 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. Notwithstandin g 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.”4

That was based on a juvenile case in which [Mr. Gall] has alrea dy 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 S tate failed to demonstrate the

existence of the holder for the record, and Mr. Gall’s first ar gument is not well-taken. {¶8} Mr. Gall’s second argument is th at a holder that originates f rom a juvenile court does not toll the triple-count pr ovision for the reasons articu lated 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 a pplication of the triple-count p rovision. The terms of the ICE detainer were not part of the reco rd, so in considering this qu estion, it was necessary for the Supreme Court to look to federal law and policy to determine th e effect of ICE detainers in general. See id. at ¶ 12-19. Having surveyed these resources, the Supreme Cou rt reasoned that

because an ICE detainer indicates that ICE will seek to hold th e 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 reco rd. That holder subjected Mr. Gall to immediate arrest and detention while he w as confined on the charges pending in this case. In other words, he was not held before t rial solely on the charges at issue in this case, so the triple-count requirement of R.C. 2945.71(E) d id not apply, and the State had 270 days after Mr. Gall’s arrest i n 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 seat ed a jury, then continued the trial for eight days before proceeding. This Court need not reach the merits of this argum ent because whether the5

commencement of trial is measured from the date the jury was se ated or from the date that trial resumed, it is undisputed that Mr . Gall was brought to trial we ll within 270 days after the date of his arrest, as required by R.C. 2945.71(C)(2). {¶11} Mr. Gall’s first assignme nt 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 e rror is that the trial court e rred by permitting the presence of two uniformed de puty 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 pr esumption 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 inhe rently prejudicial because the y 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 co urtroom during trial is one such practice. Id . In concluding that this practice is not inherently prejudici al, the United States Suprem e Court reasoned: While shackling and prison clothe s are unmistakable indications of the need to separate a defendant from the co mmunity 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 a s easily believe that the office rs are there to guard6

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 remin ders of the defendant’s special status. Our society has become inured to t he presence of armed guards in most public places; they are doubtless taken fo r 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 i n a courtroom is also “intimately related to the State’s legitimate interest in maintaining custo dy 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 spect ator section” during a trial of multiple defendants. Id . at 571. In that situation, the Court observe d, “[f]our troopers are unlike ly to have been taken as a sign of anything other than a normal official concern for the safety an d order of the proceedings. Indeed, any juror who for some other reason believed defendants particularly dangerous might well have wondered why there wer e only four armed troopers to s ix defendants.” Id

. {¶15} Even when courtroom security measures may pose a risk of erodin g the presumption of innocence, the decision to implement them is ent rusted 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 D istrict 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 tria l and, in another case, that a

defendant was not denied a fair t rial when he was escorted to t he witness stand by uniformed7

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 de clined 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 d eputy sheriffs in the courtroom during the trial, and t he 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 impressi on 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 tha t half of the courtroom. [DEFENSE COUNSEL]: Okay. THE COURT: He’s got to be in fr ont of that rail to protect ever ybody here. [DEFENSE COUNSEL]: Okay. I’d just note my objection for the re cord. 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 t he 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 t here are two deputies, one on each side of the courtroom; as the defendant i s on one side, that’s where one of the deputies is, a nd the other deputy is clear acr oss the other side of the courtroom. [DEFENSE COUNSEL]: Agreed, Judge. Based on this exchange, it appear s that the trial court determi ned 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 refle cts that they stood on opposite sides8

of the courtroom. With respect to the deputy who stood in clos e proximity to Mr. Gall, the trial

court’s comments indicate that t he deputy was positioned in fro nt 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 hav e been taken as a sign of anything other than a normal official concern for the safety and order o f 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 assign ment 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 tr ial court erred by denying his request for jury inst ructions that included the def initions of negligent and reckless mental states. Specifically, he argues that although the culpa ble mental states at issue were purposely and knowingly, “the j ury does not fully understand th e mens rea that they are asked to decide[]” unless they are ins tructed on “all f our * * * mental states.” This Court disagrees. {¶19} “[A] trial court must fully and completely give the jury all i nstructions which are relevant and necessary for the jur y to weigh the evidence and d ischarge its duty as the fact

finder.” State v. Comen , 50 Ohio St.3d 206 (1990), paragr aph 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 enj oy broad discretion in fashioning jury instructions, they must “present a correct, pertinent statement of the law that is appropriate to the9

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 request ed jury instruction for an abuse of

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

a trial court’s decision “‘is c ontrary to law, unreasonable, no t 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 formal ly object after the jury instruction was given, but b efore the jury retired, he has forfeited all but plain error in connection with this assignment o f error. Under Crim.R. 30(A), it is true that “a party may not assign as error the * * * failure to give any instructions unle ss the party objects before the jury retires to consider its verdict, stating specifically the matte r objected to and the grounds of the objection.” When a party requests a jury instruction and the r ecord 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 cou nsel 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 t hat Mr. Gall forfeited his ob jection under these circumstances. {¶21} Although a trial court must instruct the jury regarding the cul pable 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.10

CA2013-03-005, 2014-Ohio-1324, ¶ 30; State v. Wood , 2d Dist. Greene No. 2006 CA 1, 2007- Ohio-1027, ¶ 20-21. The intent be hind a request for such instr uctions is “presumably to contrast [the culpable mental states] in the hope that the jury would fi nd that [defendant’s] conduct rose to the former, but not to the more stringent latter state of mi nd.” 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 commissio n 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 te rms 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 instruc tions to discharge its duty. See Comen , 50 Ohio St.3d 206 at paragraph two of the syllabus ; R.C. 2945.11. The trial court d id not abuse its discretion by omitting the definitions of reckless and negligent conduct from the jury instructions. {¶23} Mr. Gall’s third assignme nt of error is overruled.

III. {¶24} Mr. Gall’s assignments of error are overruled. The judgment of the Lorain County Court of Comm on Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal.11

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. 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.

LYNNE S. CALL AHAN 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.