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State v. Horsley

Court of Appeals of Ohio, Fourth District, Scioto

April 23, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
SHANNON L. HORSLEY JR., Defendant-Appellant.

          Richard E. Wolfson, Richard E. Wolfson, Esq., LLC, Portsmouth, Ohio, for Appellant.

          Mark E. Kuhn, Scioto County Prosecuting Attorney, and Pat Apel and Julie Cooke Hutchinson, Scioto County Assistant Prosecuting Attorneys, Portsmouth, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          PER CURIAM.

         {¶1} Shannon Horsley appeals from his conviction for one count of rape after he was found guilty by a jury after a five-day trial. On appeal, Appellant contends that 1) the trial court erred in overruling his motion for discharge on grounds of speedy trial in violation of his statutory and constitutional rights; 2) the trial court erred in overruling his motion for a special prosecutor and dismissal with notice of defense of selective prosecution; and 3) his conviction was against the sufficiency and manifest weight of the evidence.

         {¶2} Because we find the trial court's decision denying Appellant's motion for discharge was based upon competent, credible evidence, we find no merit to Appellant's first assignment of error and it is overruled. Likewise, because we find that the trial court's denial of Appellant's motion for dismissal based upon selective prosecution and for a special prosecutor was based upon competent, credible evidence, and because we find no abuse of discretion related to the trial court's application of the rape shield law, we find no merit to Appellant's second assignment of error and it is also overruled. Finally, in light of our determination that Appellant's conviction was supported by sufficient evidence and was not against the manifest weight of the evidence, we find no merit to Appellant's third assignment of error and it is overruled as well. Having found no merit in any of the assignments of error raised by Appellant, the decision of the trial court is affirmed.

         FACTS

         {¶3} Appellant was indicted on August 22, 2014 on five counts of rape, all felonies of the first degree and in violation of R.C. 2907.02(A)(1)(b) and 2907.02(B). Count one alleged Appellant raped a child, age ten, between the time periods of August 1, 2012 and October 29, 2012. Count two alleged Appellant raped a child, age ten, between the time periods of October 1, 2012 and October 29, 2012. Count three alleged Appellant raped a child, age eleven, between the time periods of November 1, 2012 and May 30, 2013. Count four alleged Appellant raped a child, ages eleven and twelve, between the time periods of October 1, 2013 and March 30, 2013. Count five alleged Appellant raped a child, age twelve, on June 19, 2014. The same child was the subject of each count, is the victim herein, and is the daughter of Appellant's former girlfriend, who also shares another child with Appellant. A later-filed amended bill of particulars alleged each of the incidences of rape involved the use of force.

         {¶4} The indictment was filed following a report made by the victim and a subsequent investigation. A review of the record reveals that at the time of the alleged crimes the victim lived in a house trailer in South Webster, Ohio, with Appellant's mother, Karen Horsley, who had legal custody of her, and that Appellant lived in another trailer right next door. During a weekend away with her biological father, David Artressia, Jr., the victim reported to a friend, who was with them on their trip, that Appellant had been touching her. This was then reported to Appellant's father, who immediately took her to Southern Ohio Medical Center to be evaluated. From there, the victim went to Adena Medical Center, where she was examined by Jamie Meyers, a Sexual Assault Nurse Examiner (SANE). A rape kit was performed on the victim while she was at Adena Medical Center. The victim was then referred to the Child Protection Center, where a forensic interview was conducted, as well as a physical evaluation by Dr. Sathish Jetty.

         {¶5} It appears Appellant was confronted by Artressia, Jr. the next morning at the residence of David Artressia, Sr.[1] Appellant denied the accusations and claimed that the issue was really about custody, and that the victim wanted an excuse to live with her father, rather than with Appellant's mother, Karen Horsley, who had legal custody of her. However, a subsequent investigation confirmed the presence of Appellant's semen on the victim's bed sheets and her dress, which was in her bedroom.

         {¶6} During the course of the investigation, the victim told investigators that Appellant had been raping her daily for over a year in various locations, including other trailers on the property where they lived, in Appellant's truck, on the side of the road on the way home from basketball practice one time, and on June 19, 2014, in her bedroom located in Karen Horsley's trailer. The record reveals the victim also alleged she had been raped by another individual, Appellant's nephew Jacob Tackett, in September of 2013. This allegation was made by the victim during her forensic interview at the Child Protection Center, and again to Detective Jodi Conkel.

         {¶7} Appellant was subsequently indicted, as detailed above, and arrested on August 26, 2014. A long litigation process ensued, with extensive motion practice by both parties, but primarily by Appellant. Several of the motions at issue are discussed in more detail below. However, we briefly note that as a result of a successful motion in limine filed by the State, the trial court made a pre-trial determination that the rape shield law applied to exclude any mention of or questioning at trial regarding the victim's allegation that she had also been raped by another individual.

         {¶8} The jury trial of this matter was continued several times at the request of Appellant, as will also be discussed in more detail below, resulting in Appellant not being brought to trial until November 16, 2016. The record further reveals Appellant was jailed from the time of his arrest until he was brought to trial. Pertinent to this appeal, aside from the continuances requested by Appellant, one hearing on a motion in limine was continued by the trial court sua sponte, which resulted in a forty-nine day delay in hearing the motion. Appellant moved for discharge on speedy trial grounds following the court's sua sponte continuance; however, Appellant's motion was denied by the trial court.

         {¶9} When the matter was finally brought to trial on November 16, 2016, the State presented several witnesses including David Artressia, Jr. and Sr., Shawn Lodwick (the friend that the victim initially reported Appellant's conduct to), SANE Jamie Myers, Drs. Sathish Jetty and Timothy Mynes, Detective Jodi Conkel, forensic scientist Erica Jimenez, and finally the victim. The victim testified, pertinent to this appeal, that she was in her bed asleep wearing a cheetah print dress on June 19, 2014. She testified that Appellant came into her room, took her clothes off of her and forcibly raped her. She testified she resisted, screamed and cried, but that no one else heard her. She testified that after Appellant was finished, she used a towel to wipe the semen off of her leg.

         {¶10} Detective Conkel testified that she took items from the victim's bedroom pursuant to a warrant, including a bath towel, a pair of panties, the bed sheet and a cheetah dress. The record reveals that Appellant's DNA was not found on the towel, but that his semen was found on the bed sheet and dress. The record further reveals that the victim's DNA was not present on the bedsheet or her dress, and that the towel was not tested for the presence of her DNA. The record further reveals that the DNA results from the tests performed on the victim's panties were excluded from evidence. Additional pertinent testimony from the State's witnesses will be discussed below under Appellant's third assignment of error.

         {¶11} Appellant also presented several witnesses in his defense, including Amanda Gatti (Scioto County Children Services case worker), Dr. Rebecca Schoettle (the victim's pediatrician during the relevant time period), Sandra Smith (the victim's assistant school principal), Scott Holstein (the victim's school principal), Ada Mills (the victim's grandmother), Corissa Boggs (the victim's counselor at Shawnee Family Health Center), Karen Horsley (Appellant's mother), and Appellant. The gist of Appellant's theory at trial was that this was all a ploy by the victim to be able to live with her father, where she could see her "friend" Shawn Lodwick. Through his witnesses, Appellant sought to prove that the victim's testimony at trial was not credible because she had never reported any sexual abuse or the alleged rapes to any of her school teachers, counselors, childrens' services caseworker or doctors, and that the family lived in such close quarters it would have been known if something like this was occurring. He further sought to provide an alternative explanation for the presence of his DNA on the victim's bed sheet and dress, claiming that he had masturbated in the victim's bedroom when she was not there. Appellant argued the absence of forensic evidence of the victim's DNA on her dress or bed sheet was consistent with his theory.

         {¶12} During their deliberations, it appears that the jury sent a question prior to rendering its verdicts asking the trial court if it could decide on four counts and be hung on one count. In response, the court instructed the jury to try to reach a verdict on all counts. Ultimately, after a six-day jury trial, the jury acquitted Appellant on counts one through four, but found him guilty on count five. The trial court subsequently sentenced Appellant to an indefinite prison term of twenty-five years to life. Appellant now brings his timely appeal, setting forth three assignments of error for our review.

         ASSIGNMENTS OF ERROR

         "I. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION TO DISCHARGE ON GROUNDS OF SPEEDY TRIAL IN VIOLATION OF HIS STATUTORY AND CONSTITUTIONAL RIGHTS.

         II. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION FOR SPECIAL PROSECUTOR AND DISMISSAL WITH NOTICE OF DEFENSE OF SELECTIVE PROSECUTION.

         III. APPELLANT'S CONVICTION WAS AGAINST THE SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE."

         ASSIGNMENT OF ERROR I

         {¶13} In his first assignment of error, Appellant contends the trial court erred in overruling his motion to discharge on speedy trial grounds, in violation of his statutory and constitutional rights. Appellant raises three issues under this assignment of error, including 1) whether the trial court's sua sponte continuance shifted charging speedy trial to the State; 2) whether the trial court's sua sponte continuance was reasonable and supported in sufficient detail; and 3) whether the trial court committed reversible error by not conducting a hearing on Appellant's May 25, 2016 objections or his May 31, 2016 motion to vacate the judgment entry of May 27, 2016. The State alleges Appellant has failed to set forth a prima face case to shift the burden to the State to demonstrate compliance with the speedy trial provisions. The State contends Appellant failed to specify he was being held solely on the charges at issue in order to invoke the triple count rule, which the State claims was fatal to his motion to discharge. The State alternatively claims Appellant was brought to trial within speedy trial limits.

         STANDARD OF REVIEW

         {¶14} Under Ohio's speedy trial statutes, if the State fails to bring a defendant to trial within the time required by R.C. 2945.71 and 2945.72, the court must discharge him upon motion made at or prior to the start of trial. R.C. 2945.73(B). The Supreme Court of Ohio has "imposed upon the prosecution and the trial courts the mandatory duty of complying" with the speedy trial statutes. State v. Singer, 50 Ohio St.2d 103, 105, 362 N.E.2d 1216 (1977). Thus, we must strictly construe the speedy trial statutes against the State. Brecksville v. Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d 706 (1996). Appellate review of a trial court's decision to deny a motion to dismiss based on statutory speedy trial grounds presents a mixed question of law and fact. State v. Nichols, 4th Dist. Adams No. 12CA955, 2013-Ohio-308, ¶ 14. We accept the trial court's findings of fact if they are supported by competent, credible evidence, but we independently review the court's application of the law to the facts. Id.

         {¶15} "When the defendant moves for discharge on speedy trial grounds and demonstrates that the State did not bring him to trial within the time limits set forth in the speedy trial statutes, the defendant has made a prima facie case for discharge." State v. Cottrell, 4th Dist. Ross Nos. 11CA3241 & 11CA3242, 2012-Ohio-4583, ¶ 10. The State then bears the burden to prove "that actions or events chargeable to the accused under R.C. 2945.72 sufficiently extended the time it had to bring the defendant to trial." Id. A person against whom a felony charge is pending must be brought to trial within 270 days after his arrest. R.C. 2945.71(C)(2). Each day the defendant spends in jail "on the pending charge" counts as three days. Id. at (E). This is commonly referred to as the triple count rule.

         LEGAL ANALYSIS

         {¶16} Initially, we note that the State alleges on appeal that Appellant failed to claim that he was being held solely on one charge or one indictment only, and thus failed to present a prima facie case for discharge which shifted the burden to the State to show compliance with speedy trial requirements. A review of the record reveals Appellant's June 13, 2016 motion for discharge on grounds of speedy trial alleged as follows, in pertinent part:

"Defendant has been in the Scioto County Jail on the instant felony charges since August, 2014. Several requests for modification of bond have been denied, most recently on 24 May 2016. R.C. §2945.71(C)(2) requires Defendant brought to trial within 270 days of arrest. R.C. §2945.71(E) requires each day Defendant is held against bond be counted as three (3) days, reducing to ninety (90) the days by which he must be brought to trial."

         {¶17} In State v. Green, 4th Dist. Ross No. 01CA2641, 2002-Ohio- 3403, ¶ 12, this Court noted that "[t]he determination of whether an accused is held solely on the pending charges is a legal conclusion dependent upon the underlying facts." Citing State v. Howard, 4th Dist. Scioto No. 93CA2136, 1994 WL 67688 (Mar. 4, 1994). We further explained in Green at ¶ 12 that:

"In reviewing speedy trial determinations we have never required, nor has any other court of appeal or the Ohio Supreme Court, the accused to recite verbatim that he or she was held 'solely on the pending charges.' Rather, it appears that courts use a "notice" approach. See State v. Armstrong (April [22], 1996), Scioto App. No. 95CA2346 (stating that the appellant created a prima facie case for discharge when he was incarcerated and 'has alleged (that} he was entitled to the "three for one" provision of R.C. 2945.71(E)') and State v. Daniels (May 11, 1994), Lawrence App. No. 93CA22 (stating that appellant presented a prima facie case for discharge by contending that he was held for more than ninety days)."

         We conclude, based upon the foregoing, that Appellant sufficiently alleged application of the triple count rule in his motion for discharge.

         {¶18} Further, a review of the record reveals that Appellant was arrested for the charges herein on August 26, 2014 and was not brought to trial until November 16, 2016. At the time Appellant filed his motion for discharge on June 13, 2016, he had been in jail awaiting trial for approximately twenty-three months, or 690 days. Thus, even without applying the triple count rule, it is clear Appellant was not brought to trial within 270 days. Based upon the language used in Appellant's motion for discharge, coupled with the number of days between the date of Appellant's arrest and the date the motion for discharge was filed, we conclude Appellant has sufficiently alleged and demonstrated a prima facie case for discharge. Therefore, the burden shifted to the State to demonstrate compliance with speedy trial requirements.

         {¶19} Moving on, we point out that this case involved numerous filings and motion practice by both parties, but primarily by Appellant, and also included a number of continuances at the request of Appellant, as well as various waivers of speedy trial time. After reviewing the record, there appears to be a consensus between the parties, however, that as of February 10, 2015, it was determined Appellant had to be brought to trial by March 9, 2015.[2] Thus, at that point, the State had 27 calendar days to bring Appellant to trial to remain within speedy trial limits. Those days continued to be reduced until February 23, 2015, when Appellant filed a "Time Waiver" stating that he was, through counsel, waiving speedy trial requirements for ninety days. Accordingly, as of February 23, 2015, fourteen speedy trial days remained. After this date, Appellant went on to file several different motions, including motions for continuances asking the court to continue the jury trial on three separate occasions, motions to modify bond, motions for reconsideration, objections and a motion in limine, and additional waivers of speedy trial time.

         {¶20} R.C. 2945.72(E) provides that the time within which an accused must be brought to trial may be extended by "[a]ny period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused[.]" "R.C. 2945.72(E) implicitly recognizes that when a motion is filed by a defendant, there is a 'period of delay necessitated'-at the very least, for a reasonable time until the motion is responded to and ruled upon." State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, ¶ 26. Further, as observed by the Supreme Court of Ohio in State v. King, 70 Ohio St.3d 158, 160, 637 N.E.2d 903 (1994), "[i]t is well-settled law that an accused may waive his constitutional right to a speedy trial provided that such a waiver is knowingly and voluntarily made." Citing Barker v. Wingo, 407 U.S. 514, 529, 92 S.Ct. 2182 (1972).

         {¶21} As set forth above, Appellant filed his first waiver of time on February 23, 2015 for a specified period of ninety days. Thus, time was tolled according to this waiver until approximately May 23, 2015. However, prior to the expiration of that time period, on May 13, 2015, Appellant filed a motion to continue the jury trial scheduled to begin May 18, 2015, citing in support his need to consult with a DNA expert. The title of this filing was "Motion to Continue for DNA Expert Consultation" and stated "Defendant waives further time constraints in order to first meet with the expert witness allowed to assist in preparation of his defense." Thus, this filing constituted a second waiver of speedy trial, which did not contain a specified end date, but rather "waive[d] further time constraints[.]" This waiver was duly noted by the trial court in its May 26, 2015, judgment entry which continued the scheduled jury trial "until further order of the court" and stated "[t]ime provisions of O.R.C. 2945.71 are hereby waived." Appellant filed no objection or other pleading arguing that time had not been waived indefinitely.

         {¶22} Thereafter, on September 9, 2015, the trial court issued a notice scheduling the matter for a two-day jury trial beginning on December 14, 2015. However, on October 16, 2015, Appellant filed a motion to suppress and/or motion in limine, both of which constitute tolling events. Four days later, on October 20, 2015, Appellant filed another motion to continue the December 14, 2015, jury trial, claiming his DNA expert was not available for trial on the scheduled dates. Appellant then filed "Objections" on November 20, 2015, related to the State's request that his expert appear in person for a hearing on his qualifications. Those "objections" contained a sentence stating Appellant "reserves objection on the grounds of a speedy trail [sic] (and/or his release on modified bond), tolled only on Defendant's motions, not objections by the State or preferred but not unavailable mean [sic] of electronic communication." Although it appears Appellant may have intended to revoke his prior time waivers by filing this objection, five days later Appellant filed another pleading entitled "Motion to Continue With Waiver Of Speedy Trial." This motion cited Appellant's expert's unavailability until the second week of January, 2016, and stated as follows:

"Now comes Defendant, through counsel, to move the trial and preceding 702/Daubert hearing date of December 14, 2015 be continued with waiver of speedy trial constraints, pursuant to Local and Criminal Rules, case law, statute [sic] and the reasons stated."

         The memorandum in support of this motion further stated that:

"Because this is Defendant's request, speedy trial considerations are tolled and Defendant waives any objection to continuing the trial on those grounds, withdrawing any previous objection."

         Thus, Appellant waived speedy trial time for a third time, indefinitely, and withdrew his previous objection.

         {¶23} On February 2, 2016, the trial court issued a notice scheduling a five-day jury trial to begin on March 21, 2016. However, just prior to the scheduled trial date, on March 1, 2016, Appellant filed a motion in limine, to preclude use by the State of DNA test results. The State opposed the motion by filing a memorandum contra on March 9, 2016. The scheduled trial date passed and the trial court filed a judgment entry on March 22, 2016, indicating that a hearing on Appellant's motion in limine was proper, which would be scheduled at the convenience of the court.[3] The court thereafter filed a notice of hearing on March 30, 2016, scheduling a hearing on Appellant's motion in limine on May 20, 2016.

         {¶24} The parties seem to agree that prior to the scheduled May 20, 2016 hearing the court informally indicated the hearing needed to be rescheduled due to the court's unavailability. The record indicates that the trial court filed a scheduling notice on May 16, 2016, re-scheduling the hearing for July 8, 2016. Thereafter, on May 18, 2016, Appellant filed a motion for bond reconsideration, citing the trial court's sua sponte continuance and Appellant's continued incarceration. The trial court issued a judgment entry on May 24, 2016, denying the motion for bond reconsideration. On May 25, 2016, Appellant filed "Objections to State's Proposed Judgment Entry, " regarding the trial court's sua sponte rescheduling of the hearing on the motion in limine, arguing that he had not waived speedy trial limitations, contrary to a sentence contained in the proposed entry, and reserved the right to move for dismissal on grounds of speedy trial. Thereafter, on May 27, 2016, the trial court filed its judgment entry formally continuing the hearing on the motion in limine. The entry cited the fact that the court itself was required to be in Columbus on the date of the hearing for a professional meeting, as well as the fact that Appellant had "waived speedy trial limitations in this case." Appellant filed a motion to vacate the judgment entry on May 31, 2016.

         {¶25} The foregoing is the backdrop to the subsequent filing of Appellant's "Motion to Discharge On Grounds Of Speedy Trial" on June 13, 2016, followed by the trial court' denial of the motion on July 14, 2016. In the interim, it appears the hearing on the motion in limine was held on July 8, 2016. The trial court filed a notice on September 23, 2016, scheduling the matter for a five-day jury trial to begin on November 16, 2016. The court then issued its written decision and judgment entry on Appellant's motion in limine on October 14, 2016. Appellant filed yet another motion in limine on October 20, 2016, followed by a motion for a mistrial on October 25, 2016. The trial court issued a judgment entry denying the motion for mistrial on November 4, 2016. Appellant then filed a motion for special prosecutor and dismissal with notice of defense of selective prosecution, which was denied by the trial court on November 10, 2016, along ...


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