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State v. Sims

Court of Appeals of Ohio, Seventh District, Mahoning

July 16, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
KEITH SIMS, Defendant-Appellant.

          Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2014 CR 1143.

          Atty. Paul Gains, Prosecuting Attorney, and Attorney Ralph Rivera, Assistant for Plaintiff-Appellee, and Atty. Attorney Edward Czopur, DeGenova & Yarwood, Ltd., for Defendant-Appellant.

          BEFORE: Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.

          OPINION AND JUDGMENT ENTRY

          Donofrio, J.

         {¶1} Defendant-appellant, Keith Sims Jr., appeals his conviction following a jury trial in the Mahoning County Court of Common Pleas for one count of murder in violation of R.C. 2903.02(A), an unclassified felony, one count of murder in violation of R.C. 2903.02(B), an unclassified felony, and one count of felonious assault in violation of R.C. 2903.11(A)(2), a felony of the second degree.

         {¶2} On October 25, 2014, Julisa Harmon, Domanisha Morris, and Shamar Harmon were visiting their friend Miguel at his home in Youngstown, Ohio. This group heard a gunshot and went outside Miguel's home to investigate. They saw appellant and another group of girls across the street from Miguel's home. Julisa's group and Miguel went across the street to appellant's home to confront him. At some point, appellant pulled out a gun, set it down, and began fighting Miguel. During the fight between appellant and Miguel, Julisa, Domanisha, and Shamar got into a verbal altercation with the other group of girls. After the verbal altercation, Julisa, Domanisha, and Shamar got into a car and drove to Julisa's house.

         {¶3} At Julisa's house, Julisa and Domanisha told Tamra Donlow and Clenesha Jackson about the altercations at Miguel's home. Julisa, Domanisha, Tamra, and Clenesha decided to drive back to Miguel's home that same night to check on him. On the way to Miguel's home, Julisa's group picked up another girl, Shaniece Wells.

         {¶4} When Julisa's group returned to Miguel's neighborhood, they went to go check on Miguel. Once Julisa's group was ready to leave Miguel's neighborhood again, they encountered the other group of girls with whom they had an altercation earlier. Another verbal altercation ensued between the two groups. This verbal altercation ended when Shaniece and a girl from the opposing group realized they were related.

         {¶5} After the altercation, Julisa's group began walking back to their vehicle. Before they reached the vehicle, three gunshots were fired in their direction. Two of the gunshots struck Shaniece: one through her abdomen and one through her left buttock. Shaniece died as a result of the gunshot wounds she suffered.

         {¶6} On November 6, 2014, appellant was arrested and charged with Shaniece's murder. In addition to the murder and felonious assault charges, appellant faced firearm specifications pursuant to R.C. 2941.145(A) on all counts.

         {¶7} Numerous pretrial motions were filed by appellant pro se, appellant's counsel, and the plaintiff-appellee, the State of Ohio. Appellant was incarcerated for the entire pretrial period and at no point waived his right to have a speedy trial.

         {¶8} On August 20, 2015 and September 3, 2015, appellant filed pro se motions to dismiss the charges on the basis that his speedy trial right was violated. On September 14, 2015, the trial court denied these motions on the basis that appellant's counsel moved for and was granted a previous continuance which tolled the running of his speedy trial clock.

         {¶9} On December 16, 2015, appellant filed another pro se motion to dismiss the charges on the basis that his speedy trial right was violated. The trial court overruled this motion on the same day.

         {¶10} Appellant's trial was held on March 28, 2016. The state called numerous witnesses. At issue in this appeal is the testimony of the four eyewitnesses to Shaniece's death. The four eyewitnesses who testified at trial were Julisa, Clenesha, Tamra, and Domanisha. Julisa, Clenesha, and Tamra all testified that they did not see who fired the shots that hit Shaniece. But Domanisha testified that she saw appellant fire his gun in the group's direction. Domanisha also testified that she heard appellant yell "I shot one of them bitches."

         {¶11} The jury returned guilty verdicts on all counts. On May 24, 2016, the trial court held a sentencing hearing. The trial court merged appellant's three guilty verdicts for sentencing purposes as Shaniece was the victim in all three counts. The trial court sentenced appellant to a minimum fifteen years of incarceration for the murder in violation of R.C. 2903.02(A) conviction and an additional three years for the accompanying firearm specification. The trial court ordered these sentences to run consecutively for a minimum total of eighteen years of incarceration. Appellant timely filed this appeal on June 8, 2016. Appellant now raises two assignments of error.

         {¶12} Appellant's first assignment of error states:

APPELLANTS RIGHT TO A SPEEDY TRIAL, PURSUANT TO THE UNITED STATES AND OHIO CONSTITUTIONS AND THE REVISED CODE, WAS VIOLATED AND IT WAS ERROR FOR THE TRIAL COURT TO DENY HIS MOTIONS TO DISMISS.

         {¶13} Appellant argues that there was a total of 508 days between his arrest and his trial. Including motions which tolled his speedy trial clock, appellant argues that he was in jail awaiting trial longer than Ohio law permits.

         {¶14} A review of a trial court's decision regarding a motion to dismiss based on statutory speedy trial grounds involves a mixed question of law and fact. State v. McCall, 152 Ohio App.3d 377, 2003-Ohio-1603, 787 N.E.2d 1241, ¶ 9 (7th Dist.). Deference is given to the trial court's findings of fact, but the appellate court independently reviews whether the trial court properly applied the law to the facts of the case. Id. When reviewing the legal issues regarding a statutory speedy trial case, the statutes are strictly construed against the state. Brecksville v. Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d 706 (1996). After 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). At that point, the State has the burden to demonstrate any extension of the time limit. Id.

         {¶15} Under Ohio law, when a defendant is charged with a felony, the defendant "[s]hall be brought to trial within two hundred seventy days after the person's arrest." R.C. 2945.71(C)(2). "[E]ach day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days." R.C. 2945.71(E).

         {¶16} Appellant did not post bail nor did he waive his right to a speedy trial. Therefore, he should have been brought to trial within ninety days after his arrest on November 6, 2014. Appellant's trial did not begin until March 28, 2016. But as appellant and the state point out, there are several events that can toll the speedy trial clock.

         {¶17} R.C. 2945.72 provides nine events that can toll the speedy trial clock. Three of the events in R.C. 2945.72 are applicable to the case at bar. R.C. 2945.72(D) extends the time for trial if a delay is caused by neglect or an improper act of the accused. R.C. 2945.72(E) extends the trial for motions, proceedings, or actions made or instituted by the accused. R.C. 2945.72(H) extends the time for trial if the accused files a motion for a continuance ...


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