State v. Walker , 2013 Ohio 3148 ( 2013 )


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  • [Cite as State v. Walker, 
    2013-Ohio-3148
    .]
    [Vacated opinion. Please see 
    2013-Ohio-3522
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 99239
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    QUINTINE M. WALKER
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED; MATTER REMANDED
    FOR CALCULATION OF JAIL-TIME CREDIT
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-545422
    BEFORE:          Blackmon, J., Boyle, P.J., and Rocco, J.
    RELEASED AND JOURNALIZED:                    July 18, 2013
    -i-
    ATTORNEY FOR APPELLANT
    Rick L. Ferrara
    2077 East 4th Street
    Second Floor
    Cleveland, Ohio 44114
    ATTORNEYS FOR APPELLEE
    Timothy J. McGinty
    Cuyahoga County Prosecutor
    By: James Hofelich
    Milko Cecez
    Assistant County Prosecutors
    8th Floor Justice Center
    1200 Ontario Street
    Cleveland, Ohio 44113
    PATRICIA ANN BLACKMON, J.:
    {¶1} Appellant Quintine M. Walker (“Walker”) appeals his convictions for
    aggravated robbery and having a weapon while under disability, and assigns six errors for
    our review.1
    {¶2} Having reviewed the record and relevant law, we affirm Walker’s
    convictions but remand the matter for the trial court to calculate the jail-time credit to
    which Walker is entitled. The apposite facts follow.
    Facts
    {¶3} The Cuyahoga County Grand Jury indicted Walker on 11 counts: two
    counts for aggravated robbery, four counts for kidnapping, two counts for felonious
    assault, one count for theft, one count for having a weapon while under disability, and one
    count for contributing to the delinquency of a minor. The charges arose from the robbery
    of two pizza delivery men at gunpoint by Walker and his codefendants: L.B.2, Emmanual
    Jackson (“Jackson”), and Oliver Finklea (“Finklea”).
    {¶4} L.B., Jackson, Finklea, and Walker were socializing the evening of
    December 16, 2010 at L.B.’s house, when they came up with the plan to commit a
    robbery. Around 1:00 a.m., on December 17, 2010, L.B. ordered several pizzas, wings,
    and pop from Arcade Pizza, the only pizza shop in the area that would deliver late at
    night. She gave the delivery address as 6717 Fullerton Road, which was a house where
    1
    See appendix.
    2
    Codefendant L.B. is a minor; therefore, she is referred to by her initials.
    no one was home across from L.B.’s house. The plan was for L.B. to act like she was
    the customer, while the other three robbed the delivery man.        Walker had a .9mm
    handgun that Jackson took from him to use during the robbery.
    {¶5} Two Arcade Pizza delivery employees delivered the pizza, Joseph Salatino
    (“Salatino”) and Sam Jeffrey (“Jeffrey”). Salatino removed the pizzas from the car and
    walked towards L.B. who was walking from the back of the house.              As Salatino
    approached L.B., Jackson pulled out the gun and ordered L.B. and Salatino to get on the
    ground.   While Jackson searched Salatino, Finklea and Walker went to the car and
    ordered Jeffrey to exit. Because the passenger door was not working, Finklea pulled him
    out through the driver’s side. Both Finklea and Walker searched the victims’ pockets
    and the car.
    {¶6} Once the group retrieved the men’s cell phones, Salatino’s jacket, wallet
    and gloves, Jackson shot the gun in the air and ordered the men to run. The delivery men
    ran towards the field next to the home. Jeffrey turned to look back at the men twice and
    each time Jackson fired a shot at him. Jeffrey and Salatino eventually returned to the car
    when they saw the group had left. They drove back to the pizza shop where they called
    the police.
    {¶7} After the robbery, the group ran across the street to return to L.B.’s house.
    However, after hearing the gunshots, L.B.’s mother told them to leave. After gathering
    their property, they left and went to DeWayne McClough’s (“McClough”) house, which
    was located down the street, where they divided the proceeds from the robbery. L.B. and
    Jackson then left, while Walker and Finklea spent the night at McClough’s house. The
    next day, Walker and Finklea were arrested at McClough’s house, while L.B. and Jackson
    were arrested at another house.
    {¶8} Prior to the pizza delivery men calling the police, the police had already
    been called by a resident on Fullerton who heard the shots fired. The police had also
    received an anonymous call directing them to L.B.’s house. The police recovered two
    .9mm shell casings from the outside area of the house where the pizzas were delivered.
    {¶9} The jury found Walker guilty of aggravated robbery and kidnapping, both
    with firearm specifications, and petty theft.        They found Walker not guilty of the
    remaining counts. The trial court conducted a separate hearing that found Walker guilty
    of having a weapon while under disability. Upon remand from this court, the trial court
    merged all the offenses, except for the weapons while under disability count with the
    aggravated robbery count, and merged all the firearm specifications. The trial court
    sentenced Walker to concurrent three-year terms for the aggravated robbery and having
    weapons while under disability counts to be served consecutively to the three-year firearm
    specification, for a total of six years.
    Speedy Trial
    {¶10} In his first assigned error, Walker argues that the trial court erred by failing
    to grant his motion to dismiss for lack of a speedy trial.
    {¶11} The Sixth Amendment of the United States Constitution and Section 10,
    Article I of the Ohio Constitution guarantee an accused the right to a speedy and public
    trial.   State v. Ginley, 8th Dist. No. 90724, 
    2009-Ohio-30
    . The standard of review that
    appellate courts apply to speedy trial issues is to count days as set forth in R.C. 2945.71.
    State v. Stevens, 8th Dist. No. 87693, 
    2006-Ohio-5914
    . Trial must be held within 270
    days of arrest in order to effectuate a speedy trial. R.C. 2945.71(C)(2). However,
    pursuant to R.C. 2945.71(E), each day spent in jail “on a pending charge” acts as three
    days toward speedy trial time, thus 90 days time in jail would equate to 270 days using the
    triple-count provision.
    {¶12} Walker was arrested on December 17, 2010. Because he was incarcerated
    while awaiting trial, the state had 90 days to bring Walker to trial. The date of arrest is
    not included in the calculation of days in determining a speedy trial violation. State v.
    Steiner, 
    71 Ohio App.3d 249
    , 250-51, 
    593 N.E.2d 368
     (9th Dist.1991); State v. Thieshen,
    
    55 Ohio App.2d 99
    , 
    379 N.E.2d 622
     (3d Dist.1977). Thus, Walker’s speedy trial time
    commenced on December 18, 2010.
    {¶13} Although the trial did not commence until January 3, 2012, the trial court
    had set the matter for trial several other times only to have it continued by various tolling
    events. Based on the various tolling events, the trial court denied Walker’s motion to
    dismiss because it concluded only 77 days had elapsed. Walker contends the trial court
    failed to include 58 days.
    {¶14} Pursuant to R.C. 2945.72, a speedy trial time may be tolled by several
    events, including the following:
    (B) Any period during which the accused is mentally incompetent to
    stand trial or during which his mental competence to stand trial is
    being determined, or any period during which the accused is physically
    incapable of standing trial;
    (C) Any period of delay necessitated by the accused’s lack of counsel,
    provided that such delay is not occasioned by any lack of diligence in
    providing counsel to an indigent accused upon his request as required
    by law;
    ***
    (E) Any period of delay necessitated by reason of a plea in bar or
    abatement, motion, proceeding, or action made or instituted by the
    accused;
    ***
    (H) The period of any continuance granted on the accused’s own
    motion, and the period of any reasonable continuance granted other
    than upon the accused’s own motion;
    {¶15} Walker filed a demand for discovery on January 6, 2011. “A demand for
    discovery or a bill of particulars is a tolling event pursuant to R.C. 2945.72(E). State v.
    Brown, 
    98 Ohio St.3d 121
    , 
    2002-Ohio-7040
    , 
    781 N.E.2d 159
    , at syllabus. Thus, his
    speedy trial time was tolled until the state responded in a “reasonably timely manner.”
    State v. McDonald, 
    153 Ohio App.3d 679
    , 
    2003-Ohio-4342
     (8th Dist.) We have held
    that that a “reasonable time” equates to 30 days. State v. Byrd, 8th Dist. No. 91433,
    
    2009-Ohio-3283
    ; State v. Barb, 8th Dist. No. 90768, 
    2008-Ohio-5877
    . Here, the state
    did not respond to Walker’s discovery demand until June 6, 2011. Thus, using the
    reasonableness standard, Walker’s motion tolled the time for 30 days. Although the
    court in its entry stated the time was tolled until February 6, the thirtieth day ends on
    February 5.
    {¶16} On February 14, 2011, Walker filed a motion to disqualify counsel, that
    operated to toll the time for trial. R.C. 2945.72(C); State v. Hiatt, 
    120 Ohio App.3d 247
    ,
    259-263, 
    697 N.E.2d 1025
     (4th Dist.1997); State v. Friedlander, 8th Dist. No. 90084,
    
    2009-Ohio-3370
    , ¶ 19; State v. Halder, 8th Dist. No. 87974, 
    2008-Ohio-3345
    , ¶ 8. Thus,
    Walker’s motion tolled the time until the court assigned new counsel on February 23,
    2011.
    {¶17} The court then tolled the time from February 23 until the scheduled pretrial
    on March 7, 2011, stating that both parties agreed that the time was tolled. On appeal,
    Walker claims there is no evidence that he agreed to toll that time period; however, at the
    November 15, 2011 speedy trial hearing, his counsel stated, “At that time [Feb. 23, 2011],
    Regis McGann was assigned. The matter was continued for a pretrial on March 7.
    Again, no speedy trial time was applied by me for that continuance.” Tr. 168. Thus, he
    did agree to toll the time during that time period. Moreover, because counsel had just
    been assigned on February 23, the continuance until March 7, 2011 was reasonable in
    order to give counsel time to become familiar with the case.     State v. Pirkel, 8th Dist.
    No. 93305, 
    2010-Ohio-1858
    .
    {¶18} On March 9,3 the final pretrial was continued at defendant’s request until
    March 15. On March 15, the pretrial was again continued at defendant’s request until
    March 28, and on March 28 it was continued at defendant’s request until March 31, 2011.
    All of these continuances at Walker’s request, tolled the calculation of Walker’s speedy
    trial time. R.C. 2945.72(H).
    {¶19} In addition to the above pretrial continuances, on March 16, 2011, Walker
    filed a motion for discovery. As we discussed above, the motion for discovery tolls the
    The record does not show why the pretrial did not go forth on March 7.
    3
    Therefore, the two-day delay in holding the hearing does not count against Walker.
    time until the state responds or until a reasonable amount of time has passed. This court
    has deemed 30 days as reasonable. Because of the overlap with Walker’s continuances,
    only 15 days are tolled based on the discovery request.
    {¶20} On April 27, 2011, Walker filed a motion for a grand jury transcript, that
    constitutes a tolling event under R.C. 2945.72(E). The court never ruled on the motion.
    However, motions filed by the defense toll the speedy trial time under R.C. 2945.72(E)
    for a “reasonable period” to allow the state an opportunity to respond and the court an
    opportunity to rule. See State v. Sanchez, 
    110 Ohio St.3d 274
    , 
    2006-Ohio-4478
    , 
    853 N.E.2d 283
    . Therefore, because 30 days has been determined to be a reasonable time,
    the motion tolled the time for 30 days.
    {¶21} On May 2, 2011, Walker filed another motion for discovery and also filed a
    motion to disclose Evid.R. 404(B) evidence prior to trial. The prosecutor responded to
    the discovery motions on June 6, 2011. Although this was beyond the 30 days we have
    stated constituted a reasonable response time to discovery, the trial court concluded that a
    34-day response time was reasonable because Walker’s counsel consented to the
    reasonableness of the response time at the November 15, 2011 hearing. Our review of
    the hearing, indicates counsel stated, that he did not add the additional days in his
    computation of the speedy trial time, although he also stated they “arguably” could be
    considered. Tr. 171.
    Given the overlap with the grand jury transcript request, this tolled the time an additional
    nine days.
    {¶22} On June 6, 2011, the trial court continued a pretrial at defendant’s request
    until June 22, 2011, further tolling the time. On June 6, the state also filed a motion for
    reciprocal discovery Walker responded 58 days later. Under these circumstances, the
    speedy trial clock was tolled for another 28 days after the reasonable response time of 30
    days had elapsed. State v. Palmer, 
    112 Ohio St.3d 457
    , 
    2007-Ohio-374
    , 
    860 N.E.2d 1011
    ; State v. Winn, 8th Dist. No. 98172, 
    2012-Ohio-5888
    ; In re D.S., 8th Dist. No.
    97757, 
    2012-Ohio-2213
    ; Barb, 8th Dist. No. 90768, 
    2008-Ohio-5877
    .
    {¶23} Additionally, starting June 7, 2011 through August 8, 2011, Walker filed
    several motions pro se.4 Walker argues the trial court should not have considered these
    motions as tolling events because Walker was represented by counsel. We agree that
    most of the motions were moot. The court, however, contended it considered the pro se
    motions argued by his counsel at the July and August hearings. However, the only
    motion argued by counsel was Walker’s motion to dismiss that he filed on July 18, 2011.
    This motion was argued on Walker’s behalf by counsel at the August 30, 2011 hearing
    and was denied by the court on September 20, 2011. We conclude this was the only pro
    se motion that tolled the time. The court also references a motion to suppress, but the
    pro se motion only states that Walker requested counsel to file such a motion, and the
    record reflects that counsel never argued the motion.
    4
    Walker filed the tolling motions: a motion requesting his assigned counsel to
    file a motion to suppress statements; a motion indicating he did not give consent for
    any continuances; a motion for separate trials from his codefendants; a motion that
    he did not consent to any more evidence motions that would toll his speedy trial
    time; a motion to inspect the grand jury transcript and a motion to dismiss for lack
    of a speedy trial.
    {¶24} On June 30, 2011, Walker filed a motion to compel, and the court conducted
    a hearing on the motion on July 17, 2011. The court tolled this time period. We
    disagree that this motion should toll the time because the motion to compel discovery was
    necessitated by the state’s failure to fully comply with Walker’s earlier discovery request;
    thus, any delay caused by the motion was not chargeable to him and does not toll the
    speedy trial time. State v. Ferrell, 8th Dist. No. 93003, 2010-Ohio- 2882; State v.
    McDaniel, 2d Dist. No. 93-CA-38, 
    1994 Ohio App. LEXIS 3141
     (July 13, 1994).
    {¶25} On July 20, 2011, the trial court continued the final pretrial until July 26 at
    defendant’s request, tolling the speedy-trial time. On August 4, 2011, the trial court
    continued the final pretrial to August 11 at defendant’s request, tolling the time. Also on
    August 4, 2011, Walker filed a motion for separate trials, that tolled the time until it was
    granted on August 31, 2011. Given that these events overlap with other tolling events,
    they did not add any more time to the tolling of the trial.
    {¶26} On September 6, 2011, prior to the commencement of the trial, defense
    counsel requested that Walker’s competency be evaluated. Therefore, the trial court
    referred Walker to the psychiatry clinic for evaluation. This tolled the time until October
    18, 2011, when Walker was found to be competent. State v. Palmer, 
    84 Ohio St.3d 103
    ,
    
    1998-Ohio-507
    , 
    702 N.E.2d 72
    .
    {¶27} On November 7, 2011, Walker filed another motion to dismiss based on his
    right to a speedy trial.    This tolled the time until the court denied the motion on
    November 21, 2011.         State v. Hopkins, 8th Dist. No. 90005, 
    2008-Ohio-3558
    , ¶ 33;
    Byrd, 8th Dist. No. 91433, 
    2009-Ohio-3283
    , ¶ 23.
    {¶28} Thereafter, both parties requested that the trial be continued until December
    12, 2011 due to scheduling conflicts. The trial court had to further continue the trial until
    January 3, 2012 due to a conflict with the court’s schedule. Scheduling and docketing
    conflicts are reasonable grounds for extending an accused’s trial date beyond the speedy
    trial limit date. State v. Lee, 
    48 Ohio St.2d 208
    , 
    357 N.E.2d 1095
     (1976); State v. Saffell,
    
    35 Ohio St.3d 90
    , 92, 
    518 N.E.2d 934
     (1988).
    {¶29} We conclude that although the trial court erred by tolling some days that
    should not have been tolled, it did not err by denying Walker’s motion to dismiss.
    According to our calculation, only 78 days had expired towards Walker’s speedy trial
    time. Walker’s first assigned error is overruled.
    Ineffective Assistance of Counsel
    {¶30} In his second assigned error, Walker argues that counsel was ineffective for
    waiving any speedy trial days that would have counted towards the count.
    {¶31} To establish a claim for ineffective assistance of counsel, Walker must show
    that his counsel’s performance was deficient and that deficiency prejudiced his defense.
    Strickland v. Washington, 
    466 U.S. 688
    , 
    104 S.Ct. 2052
    , 
    80 L.Ed.2d 674
     (1984); State v.
    Bradley, 
    423 Ohio St.3d 136
    , 
    538 N.E.2d 373
     (1989). Under Strickland, our scrutiny of
    an attorney’s work must be highly deferential, and we must indulge “a strong presumption
    that counsel’s conduct falls within the range of reasonable professional assistance.” Id.
    at 688.
    {¶32} Walker contends his counsel was ineffective for waiving four days in
    conjunction with the state’s response to his discovery. The state responded in 34 days
    instead of the “reasonable time” of 30 days. “A defendant’s right to be brought to trial
    within the time limits expressed in R.C. 2945.71 may be waived by his counsel for
    reasons of trial preparation and the defendant is bound by the waiver even though the
    waiver is executed without his consent.” State v. McBreen, 
    54 Ohio St.2d 315
    , 
    376 N.E.2d 593
     (1978), syllabus.
    {¶33} Moreover, even if we add those four days to Walker’s speedy-trial time,
    only 81 days would have elapsed. He would still have been tried well before the 90 days
    for a speedy trial. Therefore, no prejudice resulted. Accordingly, Walker’s second
    assigned error is overruled.
    Manifest Weight and Sufficiency of Evidence
    {¶34} Walker’s third and fourth assigned errors will be addressed together as they
    both concern Walker’s argument that there was no credible evidence that he participated
    in the robbery because the victims could not identify him, and his codefendants were no
    credible.
    {¶35} In State v. Wilson, 
    113 Ohio St.3d 382
    , 
    2007-Ohio-2202
    , 
    865 N.E.2d 1264
    ,
    the Ohio Supreme Court addressed the standard of review for a criminal manifest weight
    challenge, as follows:
    The criminal manifest-weight-of-the-evidence standard was explained
    in State v. Thompkins (1997), 
    78 Ohio St.3d 380
    , 
    1997 Ohio 52
    , 
    678 N.E.2d 541
    . In Thompkins, the court distinguished between sufficiency
    of the evidence and manifest weight of the evidence, finding that these
    concepts differ both qualitatively and quantitatively. Id. at 386, 
    678 N.E.2d 541
    . The court held that sufficiency of the evidence is a test of
    adequacy as to whether the evidence is legally sufficient to support a
    verdict as a matter of law, but weight of the evidence addresses the
    evidence’s effect of inducing belief. Id. at 386-387, 
    678 N.E.2d 541
    . In
    other words, a reviewing court asks whose evidence is more persuasive
    — the state’s or the defendant’s? We went on to hold that although
    there may be sufficient evidence to support a judgment, it could
    nevertheless be against the manifest weight of the evidence. Id. at 387,
    
    678 N.E.2d 541
    . “When a court of appeals reverses a judgment of a
    trial court on the basis that the verdict is against the weight of the
    evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees
    with the factfinder’s resolution of the conflicting testimony.” Id. at 387,
    
    678 N.E.2d 541
    , citing Tibbs v. Florida (1982), 
    457 U.S. 31
    , 42, 
    102 S.Ct. 2211
    , 
    72 L.Ed.2d 652
    .
    Id. at ¶ 25.
    {¶36} An appellate court may not merely substitute its view for that of the jury, but
    must find that “in resolving conflicts in the evidence, the jury clearly lost its way and
    created such a manifest miscarriage of justice that the conviction must be reversed and a
    new trial ordered.” Thompkins at 387. Accordingly, reversal on manifest weight grounds
    is reserved for “the exceptional case that the evidence weighs heavily against the
    conviction.” Id.
    {¶37} Walker contends that although Finklea and L.B. implicated him in the
    robbery, they were not credible witnesses because they had received plea deals in
    exchange for their testimony and had been smoking pot the entire day prior to the
    robbery. Finklea had testified that Walker had invited him to participate in a robbery and
    brought him back to L.B.’s house to help with the planning. He also stated that Walker
    initially had the gun, but that Jackson took the gun from Walker prior to robbery; that
    Walker was present when they all decided where to hide prior to the delivery of the pizza;
    that he and Walker searched the delivery men’s pockets; and that the four of them split
    the money after the robbery.
    {¶38} L.B. testified that Walker was at her house while the group planned the
    robbery. She stated that Finklea was the one that came up with the idea to rob a pizza
    delivery man, but that she, Walker, and Jackson were in agreement. She also stated
    Walker brought the gun, but that Jackson took it from him; that Walker hid with her
    behind bushes prior to the pizza delivery; that she observed Walker searching the delivery
    man’s car; and that they split the proceeds at McClough’s house where Finklea also gave
    Walker one of the cell phones.
    {¶39} This testimony directly implicates Walker in the planning and carrying out
    of the robbery. Therefore, he was not merely present at the robbery, but was actively
    involved.   Whether to believe these witnesses was for the jury to determine.         The
    testimony of these two witnesses was consistent, and the jury was aware that they had
    entered into pleas and had been smoking pot. We defer to the jury as to whether the
    witnesses were credible because the jury is best able to weigh the evidence and judge the
    credibility of witnesses by viewing the demeanor, voice inflections, and gestures of the
    witnesses testifying. See Seasons Coal Co. v. Cleveland, 
    10 Ohio St.3d 77
    , 80, 
    461 N.E.2d 1273
     (1994); State v. DeHass, 
    10 Ohio St.2d 230
    , 231, 
    227 N.E.2d 212
     (1967).
    We conclude there is no reason to veer from this deference.
    {¶40} Additionally, L.B.’s mother, who was not smoking pot and did not
    participate in the robbery, testified that she saw Walker, along with the other men at her
    home prior to the robbery. She said that when she walked into the kitchen where they
    were, “it looked like I had just walked in on something.” She said after the gunshots, all
    four of them tried to get back into her house, but she told all four of them to leave.
    McClough, who also did not participate in the robbery, stated that Walker came to his
    house with the other three and that they had pizza and pop. He watched as they split the
    money. He noticed Walker had a bulge in his pants by his hip, that looked like a gun.
    Thus, these two other witnesses corroborated Finklea’s and L.B.’s testimony.
    {¶41} Walker also contends his conviction for aggravated robbery was not
    supported by sufficient evidence.     Crim.R. 29 mandates that the trial court issue a
    judgment of acquittal where the state’s evidence is insufficient to sustain a conviction for
    the offense. Crim.R. 29(A) and a sufficiency of the evidence review require the same
    analysis. State v. Tenace, 
    109 Ohio St.3d 255
    , 
    2006-Ohio-2417
    , 
    847 N.E.2d 386
    .
    {¶42} In analyzing whether a conviction is supported by sufficient evidence, the
    reviewing court must view the evidence “in the light most favorable to the prosecution”
    and ask whether “any rational trier of fact could have found the essential elements of the
    crime proven beyond a reasonable doubt.” Jackson v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S.Ct. 2781
    , 
    61 L.Ed.2d 560
     (1979); State v. Jenks, 
    61 Ohio St.3d 259
    , 
    574 N.E.2d 492
    (1991), paragraph two of the syllabus; State v. Carter, 
    72 Ohio St.3d 545
    ,
    
    1995-Ohio-104
    , 
    651 N.E.2d 965
    .
    {¶43} Walker simply reiterates his arguments from his manifest weight of the
    evidence argument and contends that because the testimony of Walker’s codefendants
    was not credible, there was no evidence that Walker committed any criminal conduct
    besides receiving a cell phone. However, as we stated, we defer to the jury regarding the
    credibility of the witnesses. The jury obviously believed the testimony. Based on the
    codefendants’ testimony, L.B.’s mother’s testimony, and McClough’s testimony, there
    was evidence that Walker helped plan the robbery, provided the gun for the robbery, and
    participated in the robbery by searching the victims’ pockets and car.     This evidence
    was sufficient to support a conviction for aggravated robbery pursuant to R.C.
    2911.02(A)(1). Accordingly, Walker’s third and fourth assigned errors are overruled.
    Hearsay
    {¶44} In his fifth assigned error, Walker contends the trial court erred by allowing
    Officer Messer to testify that McClough told him that a scarf and neck warmer found at
    McClough’s house belonged to Walker.
    {¶45} Even if this statement was hearsay, we do not see how it was prejudicial.
    McClough testified that Walker and Finklea were arrested at his house the morning of
    December 17, 2010.      Therefore, the jury was aware that Walker was present at
    McClough’s house. Error is harmless when there is no reasonable probability that the
    jury would have acquitted the defendant had the evidence not been admitted. State v.
    Brown, 
    65 Ohio St.3d 482
    , 
    605 N.E.2d 45
     (1992). The scarf and neck warmer were not
    crucial evidence in the instant case and did not play a part in Walker’s conviction.
    Accordingly, Walker’s fifth assigned error is overruled.
    Credit for Jail Time
    {¶46} In his sixth assigned error, Walker contends the trial court erred by not
    giving him credit for jail time. Prior to his sentencing, Walker submitted a motion for
    jail-time credit that was never ruled upon by the trial court.
    {¶47} R.C. 2967.191 requires that an offender’s prison term be reduced “by the
    total number of days that the prisoner was confined for any reason arising out of the
    offense for which the prisoner was convicted and sentenced [.]”           “Although the
    [department of rehabilitation and correction] has a mandatory duty pursuant to R.C.
    2967.191 to credit an inmate with the jail time already served, it is the trial court that
    makes the factual determination as to the number of days of confinement that a defendant
    is entitled to have credited toward his sentence.” State ex rel. Rankin v. Ohio Adult
    Parole Authority, 
    98 Ohio St.3d 476
    , 
    2003-Ohio-2061
    , 
    786 N.E.2d 1286
    , ¶ 7. Thus, we
    remand the matter for the trial court to calculate the amount of jail-time credit to which
    Walker is entitled. Accordingly, Walker’s sixth assigned error is overruled.
    {¶48}    Judgment is affirmed, and the matter remanded for the calculation of
    jail-time credit.
    It is ordered that appellant and appellee share the costs herein taxed. The court
    finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this court directing the court of
    common pleas to carry this judgment into execution.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
    the Rules of Appellate Procedure.
    PATRICIA ANN BLACKMON, JUDGE
    MARY J. BOYLE, P.J., and
    KENNETH A. ROCCO, J., CONCUR
    APPENDIX
    Assignments of Error
    I. Defendant was denied due process of law by lapse of his speedy trial
    time.
    II. Defense counsel was ineffective in failing to properly argue speedy
    trial time to the trial court.
    III. The manifest weight of the evidence did not support appellant’s
    convictions for aggravated robbery, kidnapping, or theft.
    IV. Insufficient evidence supported any of appellant’s convictions.
    V. The trial court erred in allowing hearsay evidence over defense
    counsel objection.
    VI. The trial court erred in failing to grant appellant jail time credit.