State v. Blair , 2015 Ohio 3604 ( 2015 )

[Cite as State v. Blair, 2015-Ohio-3604.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 26256
:
v. : Trial Court Case No. 12-CR-3714
:
WILLIAM L. BLAIR, JR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 4th day of September, 2015.
...........
MATHIAS H. HECK, JR., by DYLAN SMEARCHECK, Atty. Reg. No. 0085249,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
AMY E. FERGUSON, Atty. Reg. No. 0088397, Ferguson Law Office, LLC, 130 West
Second Street, Suite 1818, Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} William L. Blair, Jr. appeals from his conviction and sentence following a jury
trial on one count of falsification to obtain a concealed handgun license, a fourth-degree
felony.
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{¶ 2} Blair advances two assignments of error. First, he alleges a violation of his
right to a speedy trial. Second, he claims the trial court violated his constitutional right to
compulsory process by refusing to allow a judge to testify as a witness for the defense.
{¶ 3} The charge against Blair stemmed from a November 2012 concealed-carry
application he submitted to the Montgomery County Sheriff’s Office. In the signed
application, Blair provided negative answers to questions about whether he had been
adjudicated a delinquent child for an act that would be a felony if committed by an adult,
whether he had been convicted of a felony drug offense, and whether he had been
convicted of resisting arrest during the preceding ten years. The February 26, 2013
indictment against Blair alleged that his responses to these questions were knowingly
false.
{¶ 4} Blair was arrested on February 28, 2013 and was released on bond on
March 5, 2013. His case initially was assigned to Judge Steven Dankof. On August 27,
2013, Judge Dankof issued an order requiring Blair to undergo a competency
examination. (Doc. #26). He later issued the same order again on October 28, 2013.
(Doc. #37). After several continuances requested by the defense, the trial court held a
January 9, 2014 competency hearing and reviewed a competency report. On January 13,
2014, it found Blair competent to stand trial. (Doc. #47).
{¶ 5} On May 9, 2014, Blair moved to dismiss the indictment against him based on
a violation of his statutory and constitutional right to a speedy trial. (Doc. #59). Thereafter,
the case was referred to visiting Judge William Wolff for the purpose of conducting a jury
trial. (Doc. #61, 63). On the morning of trial, Judge Wolff orally overruled the speedy-trial
motion. (Tr. at 4-8). Judge Wolff also overruled a defense motion to allow Judge Dankof to
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be called as a witness to testify about his prior observations of Blair trying to read court
documents. (Id. at 94). The defense wanted to use Judge Dankof’s testimony to support
an argument that Blair did not knowingly make false statements on the concealed-carry
application because he had difficulty reading. After hearing argument, the trial court
overruled the motion. (Id. at 99). The jury subsequently found Blair guilty, and the trial
court imposed a 12-month prison sentence. (Doc. #68, 72).
{¶ 6} In his first assignment of error, Blair challenges the trial court’s rejection of his
speedy-trial argument. The sole issue he raises is whether speedy-trial time was tolled
during the delay related to the competency examination. Thus, he apparently concedes
that there was no statutory or constitutional speedy-trial violation if the speedy-trial clock
did not run during this period of delay. He argues, however, that speedy-trial time was not
tolled because neither he nor the State had requested a competency examination.
{¶ 7} Upon review, we find Blair’s argument to be unpersuasive. Although the
record does not reveal what precipitated the concern about his competence, he does not
suggest on appeal that this concern was entirely unfounded or contrived. We note too that
the trial court’s first order for a competency examination on August 27, 2013 stated that
defense counsel had “raised the issue of his competence to stand trial.” (Doc. #26). The
trial court’s second order for a competency examination included the same language.
(Doc. #37). At defense counsel’s request, a hearing on the matter was rescheduled
several times. (Doc. #29, 35, 36, 38-41, 43). The hearing ultimately was held on January
9, 2014, and the trial court found Blair competent on January 13, 2014. (Doc. #49).
{¶ 8} Regardless of who initially raised the issue of Blair’s competence, we
conclude that speedy-trial time was tolled between August 27, 2013, when the trial court
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first ordered a competency examination, and January 13, 2014, when the trial court found
him competent to stand trial. Under Ohio law, the time within which an accused must be
brought to trial is extended by “[a]ny period during which the accused is mentally
incompetent to stand trial or during which his mental competence to stand trial is being
determined[.]” R.C. 2945.72(B). In addition, under R.C. 2945.37(B), the prosecutor, the
defense, or the trial court sua sponte may raise the issue of a defendant’s competence to
stand trial.
{¶ 9} Here, when the trial court filed its August 27, 2013 order for Blair’s
competence to be determined, speedy-trial time was tolled by R.C. 2945.72(B). It
remained tolled until the trial court determined his competence on January 13, 2014.
State v. Palmer, 84 Ohio St.3d 103, 106-107, 702 N.E.2d 72 (1998). This is true even if,
as Blair suggests, the trial court raised the issue of his competence sua sponte. State v.
Nottingham, 7th Dist. Belmont No. 05BE39, 2007-Ohio-3040, ¶ 16; State v. Simpson,
11th Dist. Lake No. 93-L-014, 1994 WL 587896, *16 (Sept. 30, 1994). Because
speedy-trial time was tolled while Blair’s competence was being determined, his
argument lacks merit. The first assignment of error is overruled.
{¶ 10} In his second assignment of error, Blair contends the trial court violated his
constitutional right to compulsory process by refusing to allow Judge Dankof to testify as a
witness for the defense. This issue arose during a discussion between the trial court and
counsel after the jury was chosen and before opening statements. Defense counsel
raised the issue by moving to be allowed to call Judge Dankof as a witness. (Tr. at 94).
Specifically, defense counsel stated that he wanted Judge Dankof to “testify with regards
to his observations when he saw Mr. Blair attempting to read some court documents”
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before the case was transferred to Judge Wolff. (Id.). The prosecutor objected on several
grounds: (1) an expert would be needed to testify about whether someone can read, and
Judge Dankof was not an expert in that area; (2) in the earlier proceedings Judge Dankof
had opined that Blair seemed to be having trouble reading, not that Blair could not read;
and (3) Evid.R. 605 precluded the judge presiding at trial from testifying as a witness. (Id.
at 96). Defense counsel responded that he did not want Judge Dankof to testify as an
expert witness. He simply wanted to call the judge, as a lay witness, to testify about what
he had observed. Defense counsel also argued that Evid.R. 605 had no applicability
because Judge Dankof no longer was presiding over the case. (Id. at 98).
{¶ 11} After hearing the parties’ arguments, the trial court held that Judge Dankof
could not be called as a witness, reasoning:
The Court is going to take a view of that Judge Dankof not be called
as a witness. I am aware of the [belief] of Judge Dankof, which I think is a
reasonable one, that he’s not really an expert on the area of whether or not
people can read or write. I’m not so sure about whether or not the rule that
Judge Dankof has been the presiding judge pertains now that the case has
been transferred to me. But I do think that his lack of expertise in the area is
such that he is simply not qualified.
And, finally, I take note of the fact that Mr. Blair was offered the
opportunity to have some sort of expert opinion as to his abilities to read and
write and has rejected that offer. So the motion to call Doc – the motion to
call Judge Dankof will be overruled.
(Id. at 98-99).
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{¶ 12} Upon review, we see no abuse of discretion in the trial court’s decision. As a
threshold matter, it is questionable whether the issue was preserved for appellate review.
Defense counsel’s motion for permission to call Judge Dankof as a witness was in
essence a pretrial motion in limine. “A motion made before opening statements regarding
the admissibility of evidence is a motion in limine.” State v. Wayne, 2d Dist. Montgomery
No. 25243, 2013-Ohio-5060, ¶ 26, fn. 1, citing State v. Wilson, 2d Dist. Montgomery No.
24577, 2012-Ohio-3098, ¶ 46-48. “The denial of such a motion generally may not be
challenged on appeal. An objection must be made during trial when the evidentiary issue
arises.” Id., citing State v. Brown, 38 Ohio St.3d 305, 311-312, 528 N.E.2d 523 (1988).
Here defense counsel did not raise the issue again during trial.
{¶ 13} In any event, Evid.R. 103(A)(1) provides that “[e]rror may not be predicted
upon a ruling which admits or excludes evidence unless a substantial right of the party is
affected and * * * [i]n case the ruling is one excluding evidence, the substance of the
evidence was made known to the court by offer or was apparent from the context[.]” Here
Blair did not proffer Judge Dankof’s proposed testimony, and its substance is not clear
from the record. As noted above, in earlier proceedings, Judge Dankof apparently had
some prior interaction with Blair and had observed him reading something. That
interaction is not part of the record. Also missing from the record are the actual comments
that Judge Dankof made when observing Blair. The State represented to the trial court
that Judge Dankof had remarked about Blair seeming to have trouble reading, but the
record is devoid of evidence on that point. Moreover, the record provides no context for
any comments that Judge Dankof may have made. For its part, the trial court seemed to
believe Judge Dankof would be called to testify about whether Blair actually could read.
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Absent more information in the record establishing the substance of Judge Dankof’s
proposed testimony, Evid.R. 103(A)(1) precludes Blair from predicating error on the trial
court’s ruling.
{¶ 14} Finally, Evid.R. 103(A)(1) also precludes Blair from predicating error on the
trial court’s ruling because the ruling did not affect his substantial rights. In other words,
any error in the trial court’s ruling was harmless, assuming arguendo that the trial court
should have allowed Judge Dankof to testify. See, e.g., State v. Morris, 141 Ohio St.3d
399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 23 (recognizing that an error is harmless and
shall be disregarded if it is non-prejudicial and, therefore, does not affect a defendant’s
substantial rights); see also R.C. 2945.83(C) (requiring a showing of prejudice before a
judgment of conviction may be reversed due to the exclusion of evidence offered for the
accused).
{¶ 15} Here we find that the exclusion of Judge Dankof’s testimony did not have
any impact on the jury’s verdict. It appears that Judge Dankof would have testified about
his observations of Blair having difficulty reading for some reason. Even if this is true,
such testimony would not have undermined the State’s case. Blair was convicted of
knowingly making false statements on an application for a concealed-carry license. At
trial, the State presented evidence that he falsely provided negative answers to questions
about whether he had been adjudicated a delinquent child for an act that would be a
felony if committed by an adult, whether he had been convicted of a felony drug offense,
and whether he had been convicted of resisting arrest during the preceding ten years.
Blair apparently wanted to use Judge Dankof’s testimony about him having difficulty
reading to support an argument that his answers on the application were not knowingly
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false. When questioned by police after submitting his application, however, Blair did not
attribute his false responses to reading problems. Rather, he claimed an attorney had
advised him that juvenile adjudications would not count against him. He also argued that
he believed he had been rehabilitated in juvenile court. (Tr. at 152-153). With regard to a
more recent adult criminal conviction, Blair claimed he did not feel he needed to answer
the question about it affirmatively because he was not guilty of the offense despite his
conviction. (Id. at 154). Blair never indicated to the investigating officer that he had not
read the application or that he did not understand it. (Id. at 155). Consequently, we are
unpersuaded that exclusion of the testimony from Judge Dankof was prejudicial to Blair.
The second assignment of error is overruled.
{¶ 16} The judgment of the Montgomery County Common Pleas Court is affirmed.
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FAIN, J., and DONOVAN, J., concur.
Copies mailed to:
Mathias H. Heck
Dylan Smearcheck
Amy E. Ferguson
Hon. William H. Wolff, Jr.