State v. Jackson ( 2024 )

[Cite as State v. Jackson, 2024-Ohio-1687.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 113185
v. :
ELVESTER JACKSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 2, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-676246-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Morgan Austin, Assistant Prosecuting
Attorney, for appellee.
Weston Hurd LLP and Paul Shipp, for appellant.
EILEEN T. GALLAGHER, J.:
Defendant-appellant, Elvester Jackson (“Jackson”), appeals from his
conviction following a jury trial. He raises the following assignments of error for
review:
1. The court erred by denying defendant’s motion for a mistrial.
2. The court erred when it denied a recording of a telephone call
stipulated to by the state.
After careful review of the record and relevant case law, we affirm
Jackson’s conviction and sentence.
I. Procedural and Factual History
On November 22, 2022, Jackson was named in a single-count
indictment, charging him with escape in violation of R.C. 2921.34(A)(1). The
indictment stemmed from allegations that Jackson failed to return to a community-
based correctional facility (“CBCF”) after receiving temporary leave to attend a
medical appointment for a limited period of time.
The matter proceeded to a jury trial on August 23, 2023. On behalf of
the state, Isaiah Bell (“Bell”) of the Ohio Department of Rehabilitation and
Corrections (“ODRC”) testified that he served as Jackson’s parole officer. According
to Bell, Jackson was initially placed in a halfway house following his release from
prison on a felony offense. However, Jackson became a “violator at large” before
Bell had an opportunity to complete his first meeting with Jackson, which must
occur within the first 24 hours of the offender’s release. (Tr. 210-211.) Thereafter,
Jackson was sanctioned and placed in the Nancy McDonnell CBCF by the Adult
Parole Authority (“APA”) in July 2022. Bell explained that the CBCF is a transitional
facility that is “a step down from prison.” The facility provides programming and
assists its residents in gaining various skills before returning to the community.
Bell testified that Jackson signed “conditions of supervision” when he
“was placed at the Nancy McDonnell CBCF.” (Tr. 212.) Thereafter, Bell met with
Jackson on a weekly basis to ensure that Jackson was on track to leave the facility
within 180 days. Bell stated that he “went over the guidelines of the CBCF” and
explained to Jackson that if he left the facility without permission “he [could] get in
trouble” and be sanctioned. (Tr. 215.)
Bell’s weekly meetings with Jackson were discontinued after Jackson
absconded from the facility in October 2022. According to Bell, Jackson was taken
to the hospital on October 13, 2022, “due to sugar spikes.” (Tr. 217.) After receiving
medical care, Jackson left the hospital without permission and did not return to the
CBCF. Bell testified that Jackson made no efforts to reach out to the parole office
and, to the best of his knowledge, did not attempt to turn himself in. Accordingly,
Jackson was declared a “violator at large” and an escape charge was pursued by the
parole board.
At the conclusion of Bell’s direct examination, a sidebar was held to
address the parties’ apparent confusion regarding the circumstances that led to
Jackson’s placement at the CBCF. In relevant part, Bell’s testimony indicated that
Jackson was placed in the transitional facility as a sanction for violating APA rules
after he was released from prison. This information was inconsistent with the state’s
suggestion during its opening argument that Jackson was placed in the CBCF at “the
end of a prison sentence he was serving * * * to start transitioning him back into the
community.” (Tr. 197-198.) The information was equally inconsistent with defense
counsel’s contention during opening statements that Jackson was not serving a
transitionary period of parole and was on postrelease control after successfully
completing his prison sentence.
During the sidebar discussion, defense counsel expressed that he was
unaware that Jackson was placed at the CBCF based on a prior APA violation.
Defense counsel characterized this information as a “surprise” and suggested that
“it kind of tanks the whole theory of our defense at this point.” (Tr. 224.) Defense
counsel further asserted that the state failed to provide notice of Jackson’s APA
sanction during the discovery process. Accordingly, defense counsel sought a
mistrial, stating:
With all due respect, your Honor, I mean, if the documents are in
possession of the Parole Board, it may not have been in possession of
the prosecutor’s office, but it’s in possession of the State. You know, I
would have been entitled to that at the very least to prepare my client
for his case and to advise him of how bad it would have looked had the
Court not been courteous to let me know I was running head first into
a buzz saw.
You know, your Honor, at this point in time, I’d be inclined to ask for
at the very least a mistrial. At most a dismissal. The jury’s been
impaneled. I don’t see how I can recover from this surprise that I’ve
stepped into.
(Tr. 226-227.)
In response, the prosecutor conceded that Bell provided insight into
Jackson’s placement at the CBCF that was not previously known by the state. The
prosecutor maintained, however, that the circumstances causing Jackson to be
placed in the transitional facility were not materially relevant to the escape charge.
The prosecutor summarized her position as follows:
I don’t think his prior sanctions are relevant to whether or not he
escaped from the CBCF. I would agree that it is information that I
learned today, but I don’t know how that makes it more or less likely
that Mr. Jackson absconded from the CBCF on the date in question.
(Tr. 225.) Thus, the prosecutor maintained they had no obligation to disclose parole
records that were “irrelevant to the case,” and the new information was not grounds
for a mistrial. (Tr. 227.)
Upon hearing from the parties, the trial court denied the oral motion
for a mistrial. The court explained its judgment as follows:
Again, the threshold issue is not why [Jackson] was on supervision. It’s
that he was — as I understand it * * * the threshold issue is that he was
to be at CBCF, had to go to the hospital, left. * * * [H]e just never came
back. That’s what I understand that state’s case is. As far as I’m
concerned, it’s not material as to why he was in prison, when he got out,
where he was at, at [a halfway house] or not. He was to be — the issue
is he was to be at CBCF and left and didn’t recontact them.
(Tr. 235.) While the trial court did not expressly find the state violated the rules of
discovery, the court indicated that, as “the least restrictive sanction,” it would afford
defense counsel additional time “to evaluate any other evidence” or “different
arguments” before resuming trial. (Tr. 229.)
When the trial recommenced the following day, the state presented its
second witness, Laresha Duckworth (“Duckworth”), a case worker employed by the
CBCF. Duckworth verified that Jackson entered the CBCF on July 28, 2022, and
was discharged from the facility on October 13, 2022, — “the date that he went
AWOL [absent without leave] from the facility.” (Tr. 251.)
On cross-examination, Duckworth testified that residents at the CBCF
can earn community access depending on their risk level and the amount of time
they have spent at the facility. She explained that community access at the CBCF is
for a four-hour period. Residents are responsible for their own transportation to
scheduled appointments, but CBCF may provide transportation upon request. (Tr.
255-256.) In this case, Jackson was provided transportation to the hospital by a staff
member at the CBCF. He was, however, responsible for his own transportation back
to the facility. Once Jackson had been missing from the CBCF for a period exceeding
four hours, the facility initiated its “AWOL Protocol,” which involved “reaching out
to the contact number that was on the pass, check calling [Jackson’s] emergency
contact person.” (Tr. 256.) Finally, Duckworth testified that if Jackson had just
been “running late” after his medical appointment, he would have been welcomed
back into the facility. The amount of time that must pass before a resident will be
turned away from the facility and considered an escapee is “situational.” (Tr. 259.)
CBCF program manager, Pamela Cardinal (“Cardinal”), testified that
when a resident earns community access, he or she must arrange off-site travel with
his or her case worker. Cardinal confirmed that Jackson was discharged from the
CBCF based on his failure to return to the facility after a medical appointment.
Cardinal provided additional information regarding the AWOL protocol and
indicated that a resident is only “deemed failed to return” after the AWOL protocol
is completed. With respect to October 13, 2022, Cardinal testified that Jackson was
transported to the hospital by CBCF staff members “as a courtesy.” (Tr. 271.)
Jackson was responsible for his own transportation back to the CBCF, although the
CBCF “would have made arrangements to pick him up and bring him back to the
facility” had he made such a request. (Tr. 271.) Finally, Cardinal testified that, to
the best of her knowledge, Jackson did not make any attempt to return to the facility
after he left the hospital without permission on October 13, 2022.
CBCF operations manager, Damon Griggs II (“Griggs”), testified that
he completed a written-violation report designating Jackson’s behavior as “AWOL
status/escape.” The violation report stated, in relevant part:
On 10/13/2022 at 12 p.m., Mr. Elvester Jackson was transported to
Metro Health hospital due to having a blood sugar reading of 575. At
1:08 p.m., the hospital was called and staff was informed that Mr.
Jackson was not there. Mr. Jackson’s emergency contact, local jails,
and local hospitals were called and Mr. Jackson was unable to be
located.
(State’s exhibit No. 3.)
In accordance with established procedure, Griggs notified Jackson’s
parole officer of Jackson’s AWOL status once he had been missing for six hours. A
second notification was provided once Jackson was missing from the facility for 24
hours.
At the close of the state’s case, defense counsel moved for an acquittal
pursuant to Crim.R. 29, arguing the evidence was not sufficient as to each essential
element of escape. Defense counsel summarized his position as follows:
We don’t believe that the state has shown that my client knew he was
on some sort of supervision and that they failed to put enough evidence
forward to have the jury contemplate whether or not he knowingly or
purposely failed to return to his detention or that he purposely tried to
break away.
The state [has] merely stated that he did not return. We’ve not been
able to hear whether or not my client had the intent to escape.
(Tr. 307.)
The state responded that it presented sufficient evidence establishing
that Jackson was aware of his APA supervision and that the jury could reasonably
infer that Jackson committed the escape offense by failing to return to the facility.
The trial court denied the motion for acquittal, finding “that reasonable minds could
reach different conclusions as to whether or not each of these elements had been
proven.” (Tr. 308.)
On behalf of the defense, Dexter Todd (“Todd”) testified that he is
employed as the lead resident supervisor at the CBCF. Todd testified that he was
familiar with Jackson and was aware that Jackson was transported to the hospital
on October 13, 2022. Todd confirmed that he was working at the front desk of the
facility that day and was responsible for interacting with the residents coming in and
out of the facility. When questioned, Todd had no recollection of Jackson
attempting to reenter the facility on October 13th or 14th. Todd also could not recall
whether Jackson contacted the facility after he was transported to the hospital.
Todd conceded that it was possible Jackson called the facility that day, however, he
did not have a record of a phone call being placed. On cross-examination, Todd
clarified that if a phone call were made to the facility by Jackson, his common
practice would have been to document the call in some way.
At the conclusion of trial, the jury found Jackson guilty of escape, a
felony of the second degree. He was sentenced to an indefinite prison term of five
to seven and one-half years.
Jackson now brings this timely appeal.
II. Law and Analysis
A. Motion for Mistrial
In the first assignment of error, Jackson argues the trial court
committed reversible error by denying his motion for a mistrial following an alleged
discovery violation. Jackson contends that he was materially prejudiced by the
prosecution’s failure to disclose pertinent parole records prior to trial.
Trial courts enjoy broad discretion in ruling on motions for mistrial.
State v. Iacona, 93 Ohio St.3d 83, 100, 752 N.E.2d 937 (2001). Absent an abuse of
discretion, a reviewing court will not reverse a trial court’s decision regarding a
motion for a mistrial. State v. Benson, 8th Dist. Cuyahoga No. 87655, 2007-Ohio-
830, ¶ 136. An abuse of discretion occurs when a trial court’s decision is
“unreasonable, arbitrary, or unconscionable.” State v. Hill, 171 Ohio St.3d 524,
2022-Ohio-4544, 218 N.E.3d 891, ¶ 9, citing Blakemore v. Blakemore, 5 Ohio St.3d
217, 219, 450 N.E.2d 1140 (1983).
“A mistrial should not be ordered in a criminal case merely because
some error or irregularity has occurred, unless the substantial rights of the accused
or the prosecution are adversely affected.” State v. Wilson, 8th Dist. Cuyahoga
No. 92148, 2010-Ohio-550, ¶ 13, citing State v. Reynolds, 49 Ohio App.3d 27, 33,
550 N.E.2d 490 (2d Dist.1988). Thus, a trial court should declare a mistrial “only
when the ends of justice so require and a fair trial is no longer possible.” State v.
Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991), citing Illinois v. Somerville,
410 U.S. 458, 462-463, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). The essential inquiry
on a motion for mistrial therefore is whether the substantial rights of the accused or
the prosecution are adversely or materially affected. Wilson at ¶ 13, citing State v.
Goerndt, 8th Dist. Cuyahoga No. 88892, 2007-Ohio-4067, ¶ 21.
In this case, defense counsel moved for a mistrial based upon the
prosecution’s failure to disclose evidence, in violation of the rules of discovery.
Specifically, Jackson states that the “defense was not provided APA records or
information which would have revealed that Mr. Jackson was in CBCF because he
had been sanctioned for violating his parole/APA supervision after release from
prison.” Jackson does not dispute that he had personal knowledge of the
circumstances leading to his placement at the CBCF. Nevertheless, he argues on
appeal that “[h]e was not provided with the information necessary for a full and fair
adjudication of facts” and, therefore, was entitled to a mistrial.
Crim.R. 16, which governs discovery, requires the prosecuting
attorney to provide copies or photographs, or permit counsel for the defendant to
copy or photograph, certain items related to the case and are material to the
preparation of a defense or are intended for use by the prosecuting attorney as
evidence at the trial. Crim.R. 16(B). The purpose of the rule is “to provide all parties
in a criminal case with the information necessary for a full and fair adjudication of
the facts, to protect the integrity of the justice system and the rights of defendants,
and to protect the well-being of witnesses, victims, and society at large.”
Crim.R. 16(A). This rule serves to “‘prevent surprise and the secreting of evidence
favorable to one party.’” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966,
986 N.E.2d 971, ¶ 19, quoting Lakewood v. Papadelis, 32 Ohio St.3d 1, 3, 511 N.E.2d
1138 (1987).
A mistrial is not mandated where a discovery violation occurs. State
v. Muszynec, 8th Dist. Cuyahoga No. 87447, 2006-Ohio-5444, ¶ 16. Indeed, a trial
court has broad discretion in regulating discovery and in determining a sanction for
a discovery violation. State v. Brown, 2019-Ohio-1235, 134 N.E.3d 783, ¶ 86 (8th
Dist.), citing Darmond at ¶ 33. When imposing a sanction for a discovery violation,
however, “the trial court must conduct an inquiry into the surrounding
circumstances and impose ‘the least severe sanction that is consistent with the
purpose of the rules of discovery.’” State v. Rucker, 2018-Ohio-1832, 113 N.E.3d 81,
¶ 20 (8th Dist.), quoting Papadelis at paragraph two of the syllabus.
In determining the appropriate sanction, a trial court must consider
whether (1) the prosecution’s failure to disclose was willful, (2) the disclosure of the
information prior to trial would have aided the accused’s defense, and (3) the
accused suffered prejudice. State v. Lindsey, 8th Dist. Cuyahoga No. 106111, 2019-
Ohio-782, ¶ 48, citing State v. Jackson, 107 Ohio St.3d 53, 79, 2005-Ohio-5981, 836
N.E.2d 1173, citing State v. Parson, 6 Ohio St.3d 442, 445, 453 N.E.2d 689 (1983).
We review a trial court’s sanction for a discovery violation for an abuse of discretion.
Rucker at ¶ 20.
After careful review, we cannot say the trial court abused its discretion
in denying Johnson’s motion for a mistrial. Contrary to Jackson’s assertion on
appeal, our review of the record reveals that the trial court conducted a thorough
inquiry into the alleged discovery violation. The trial court granted the parties ample
time to develop their competing arguments as to whether the undisclosed APA
records would have been relevant to Jackson’s defense. Ultimately, the trial court
concluded that the circumstances causing Jackson to be placed in the CBCF were
irrelevant to the elements of the escape charge. As astutely noted by the trial court,
the pertinent issue before the trier of fact was whether Jackson purposely failed to
return to the facility without permission or justification. Additional evidence
demonstrating that Jackson was placed in the CBCF based on a prior AWOL status
would have only hampered Jackson’s defense while corroborating the state’s
allegations in this matter.
Notwithstanding the lack of prejudice, the trial court provided defense
counsel additional time to consult with Jackson and “evaluate any other evidence”
as “the least restrictive sanction.” (Tr. 229.) Under these circumstances, we find
“the ends of justice” did not “so require” a mistrial. Franklin, 62 Ohio St.3d at 127,
580 N.E.2d 1, citing Somerville, 410 U.S. at 462-463, 93 S.Ct. 1066, 35 L.Ed.2d 425.
The first assignment of error is overruled.
B. Exclusion of Jailhouse Phone Call
In the second assignment of error, Jackson argues the trial court
abused its discretion by prohibiting him from introducing relevant portions of a
recorded jailhouse phone call.
In this case, a redacted version of a jailhouse phone call was originally
offered by the state during its case-in-chief. The proposed exhibit, marked state’s
exhibit No. 7, captures a 17-minute-long phone conversation held between Jackson
and an unknown individual. During this phone call, the unknown individual stated
to Jackson that he “f***ed up” and should have stayed at the hospital and let the
CBCF staff come get him, instead of “running.” (State’s exhibit No. 7, at 7:51-8:05.)
Jackson confirmed that he did not return to the facility on time, but claimed that he
was only one hour late and that “they” should have “looked into that.” (State’s
exhibit No. 7, at 7:52-7:57.)
Initially, defense counsel “stipulate[d] to the relevant portions of that
call and its authenticity,” and the parties stated that they would discuss which
portions of the recording were irrelevant and should be redacted. (Tr. 231-232.) At
the close of trial, however, the parties disagreed on which portions of the jailhouse
call should be redacted or excluded from the exhibit presented to the jury. Jackson
sought to include the portion of the phone call wherein Jackson states that he was
only one hour late in returning to the CBCF. (Tr. 329.) Defense counsel argued that
Jackson’s attempt to return to the facility demonstrates that he did not intend to
escape. In contrast, the state argued that Jackson’s statement was not relevant and,
therefore, should be redacted from the exhibit. The state noted that if the court
intended to allow Jackson’s statement into evidence, it would withdraw the exhibit
in its entirety.
Following a discussion on the record, the state withdrew the jailhouse
call as a trial exhibit. Defense counsel, however, argued that it should be permitted
to introduce the exhibit in its entirety as a defense exhibit. The state opposed
defense counsel’s request, arguing that Jackson’s statement during the phone call
was inadmissible hearsay and did not satisfy the requirements of Evid.R. 801(D)(2).
The trial court agreed and prohibited the recorded phone call from being published
to the jury.
On appeal, Jackson contends that the portion of the audio recording
he sought to introduce was highly relevant and admissible under Evid.R. 106,
803(8), or 804(B)(3). Jackson argues that his statement “corroborates a defense
argument that [he] did return to the CBCF on October 13, 2022 but was turned
away.” (Emphasis sic). While conceding that his admission during the phone call
was against his interests, Jackson maintains that the act of “returning late tends to
negate the intent elements of the [escape] charge, since he did ultimately return.”
Appellate courts ordinarily review a trial court’s hearsay ruling for an
abuse of discretion. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70
N.E.3d 508, ¶ 97. An abuse of discretion occurs when a court exercises its judgment
in an unwarranted way regarding a matter over which it has discretionary authority.
Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.
In other words, “[a] court abuses its discretion when a legal rule entrusts a decision
to a judge’s discretion and the judge’s exercise of that discretion is outside of the
legally permissible range of choices.” State v. Hackett, 164 Ohio St.3d 74, 2020-
Ohio-6699, 172 N.E.3d 75, ¶ 19. An abuse of discretion may be found where a trial
court “applies the wrong legal standard, misapplies the correct legal standard, or
relies on clearly erroneous findings of fact.” State v. McFarland, 8th Dist. Cuyahoga
No. 111390, 2022-Ohio-4638, ¶ 21, citing Thomas v. Cleveland, 176 Ohio App.3d
401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.).
Evid.R. 801 defines “hearsay” as “a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Certain statements are excluded from the definition
of hearsay, including statements of a party-opponent where the statement is offered
against that party. Evid.R. 801(D)(2)(a). In addition, there are various exceptions
to the hearsay rule. One such exception is for public records and reports:
Records, reports, statements, or data compilations, in any form, of
public offices or agencies, setting forth * * *matters observed pursuant
to duty imposed by law as to which matters there was a duty to report,
excluding, however, in criminal cases matters observed by police
officers and other law enforcement personnel, unless offered by
defendant, unless the sources of information or other circumstances
indicate lack of trustworthiness.
Evid.R. 803(8).
Lastly, a statement that is offered against a party is not excluded by
the hearsay rule if the declarant is unavailable as a witness and the statement
was at the time of its making so far contrary to the declarant’s pecuniary
or proprietary interest, or so far tended to subject the declarant to civil
or criminal liability, or to render invalid a claim by the declarant against
another, that a reasonable person in the declarant’s position would not
have made the statement unless the declarant believed it to be true.
Evid.R. 804(B)(3). A statement tending to expose the declarant to criminal liability
is not admissible “unless corroborating circumstances clearly indicate the
trustworthiness of the statement.” Id.After careful review of the record and the contents of the disputed
exhibit, we are unable to conclude that the trial court abused its discretion by
excluding the recorded jailhouse call. Ordinarily, the statement of a defendant
during a recorded jailhouse call is admitted as an admission of a party-opponent
under Evid.R. 801(D)(2). See, e.g., State v. Gerde, 12th Dist. Clermont No. CA2016-
11-077, 2017-Ohio-7464, ¶ 9. In this case, however, the nonhearsay rule did not
apply once the state withdrew its request to admit a redacted portion of the jailhouse
phone call and Jackson sought to introduce the recording as a defense exhibit.
To the extent Jackson suggests the jailhouse phone call constituted a
record of a public agency, we begin by noting that the Second District Court of
Appeals has previously held that “Evid.R. 803(8) does not apply to recordings of
telephone calls by jail inmates[.]” State v. Moody, 2d Dist. Montgomery No. 26926,
2016-Ohio-8366, ¶ 66. Nevertheless, even if this court were to construe the
recording as a “record” as contemplated under the exception to hearsay, we find
Jackson’s statement within the out-of-court recording constituted double hearsay.
Thus, in order for Jackson’s statement to be admissible, defense counsel was
required to establish that the “hearsay within hearsay” statement also fit within a
recognized exception. See State v. Duke, 8th Dist. Cuyahoga No. 52604, 1988 Ohio
App. LEXIS 3466, 13 (Aug. 25, 1988) (“Hearsay within hearsay is admissible only if
an exception is applicable to each of the hearsay components.”); Evid. R. 805.
In this case, Jackson has alternatively suggested that his statement
during the recorded phone call was admissible as an exception to hearsay under
Evid.R. 804(B)(3). However, Jackson has provided no basis to conclude that he was
unavailable as a witness as required under the rule. See State v. Brown, 3 Ohio
App.3d 131, 138, 443 N.E.2d 1382 (8th Dist.1981) (stating “a declarant is
“unavailable” as a witness in situations in which he “is exempted by ruling of the
court on the ground of privilege from testifying concerning the subject matter of his
statement[.]”). Relatedly, Jackson has not identified corroborating information in
the record to suggest his out-of-court statement was trustworthy. As discussed
further below, each witness at trial testified that they had no recollection of Jackson
attempting to re-enter the facility after the time he was designated to return.
Jackson’s attempt to shift blame to the transitional facility during a casual
conversation with a friend is inconsistent with the reports introduced by the state
and is in direct conflict with the testimony of each CBCF employee. Accordingly, we
find the trial court did not commit an abuse of discretion by excluding the disputed
statement from evidence.
Finally, assuming arguendo that the trial court erred in excluding the
recording as a defense exhibit, we find such error to be harmless. Crim.R. 52(A)
defines harmless error in the context of criminal cases and provides: “Any error,
defect, irregularity, or variance which does not affect substantial rights shall be
disregarded.” During a harmless-error inquiry, the state has the burden of proving
that the error did not affect the substantial rights of the defendant. State v. Perry,
101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15. Furthermore, if there is
“a ‘[d]eviation from a legal rule,’” courts undertake a “‘harmless error’ inquiry — to
determine whether the error ‘affect[ed] substantial rights’ of the criminal
defendant.” State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222,
¶ 7, quoting United States v. Olano, 507 U.S. 725, 732-733, 734, 113 S.Ct. 1770, 123
L.Ed.2d 508 (1993). To be viewed as “affecting substantial rights,” the error must
have been prejudicial, meaning “‘[i]t must have affected the outcome of the [trial]
court proceedings.’” Fisher at ¶ 7, quoting Olano at 374.
In this case, Jackson was convicted of escape in violation of
R.C. 2921.34(A)(1). The statute provides:
No person, knowing the person is under detention * * * or being
reckless in that regard, shall purposely break or attempt to break the
detention, or purposely fail to return to detention, either following
temporary leave granted for a specific purpose or limited period, or at
the time required when serving a sentence in intermittent confinement.
R.C. 2921.01(E), in pertinent part with regards to these facts, defines
detention to mean “confinement in any public or private facility for custody of
persons charged with or convicted of crime in this state[.]” Pursuant to
R.C. 2901.22, a person acts “purposely”
when it is the person’s specific intention to cause a certain result, or,
when the gist of the offense is a prohibition against conduct of a certain
nature, regardless of what the offender intends to accomplish thereby,
it is the offender’s specific intention to engage in conduct of that nature.
R.C. 2901.22(A). “[A] person is presumed to intend the natural, reasonable and
probable consequences of his voluntary acts.” State v. Johnson, 56 Ohio St.2d 35,
39, 381 N.E.2d 637 (1978). Purpose or intent can be established by circumstantial
evidence. State v. Garner, 74 Ohio St.3d 49, 60, 656 N.E.2d 623 (1995) (Intent can
be determined from the surrounding facts and circumstances.); State v. Lewis, 8th
Dist. Cuyahoga No. 108463, 2020-Ohio-5265, ¶ 26.
This is not the case where the excluded out-of-court statement can be
characterized as being favorable to the defendant. Had the recording been admitted
into evidence, the jury would have heard Jackson’s acquaintance chastise him from
“running” from the facility. Similarly, Jackson’s statement that he failed to return
to the CBCF on time after being granted temporary leave to exit the facility for a
specific purpose and for a limited period constituted an inculpatory admission.
Contrary to Jackson’s suggestion on appeal, Jackson’s admission does not permit
the inference that his failure to return to the facility on time was unintentional. The
challenged statement was brief. Jackson did not discuss what occurred after he left
the medical facility or the circumstances that caused his alleged late arrival. Under
these circumstances, we find no basis to conclude that Jackson’s admission negated
the purposely element of the escape offense.
Notwithstanding the inculpatory nature of Jackson’s admission, we
emphasize that Jackson’s statement is inconsistent with the testimony of the CBCF
staff members and the facility’s documented records. In this case, Bell testified that
he met with Jackson once he was placed in the CBCF and explained the facility’s
guidelines and the potential sanctions for leaving the facility without permission.
Duckworth, Cardinal, and Griggs provided corroborating testimony regarding (1)
the circumstances of Jackson’s medical emergency, (2) each resident’s responsibility
for their own transportation to and from leave, and (3) the facility’s AWOL protocol.
Cardinal testified that she had no recollection of Jackson attempting to return to the
facility after he left the hospital without permission on October 13, 2022. In
addition, Duckwork and Cardinal each testified that the facility would have accepted
Jackson back into the building had he returned to the facility within a reasonable
period of time. (Tr. 257-259, and 282.) Similarly, the sole witness presented by the
defense testified that he had no recollection of Jackson (1) attempting to reenter the
facility on October 13th or 14th, or (2) attempting to call the facility after he left the
hospital. Todd explained that if a phone call were placed, he would have
documented the conversation.
Based on the foregoing testimony and the documentary evidence
establishing that Jackson was not detained until his arrest in March 2023, a trier of
fact could have reasonably concluded that Jackson, knowing he was under
detention, acted with the specific intention of failing to return to the CBCF, either
following temporary leave granted for a specific purpose or limited period. (See
state’s exhibit No. 5, booking photo dated March 2, 2023.) And given the
inculpatory nature of Jackson’s statement during the recorded jailhouse phone call,
we cannot say the trial court’s exclusion of exhibit No. 7 affected the outcome of the
trial proceedings. Accordingly, any error associated with the trial court’s evidentiary
ruling was harmless pursuant to Crim.R. 52(A).
The second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant 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
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
MICHELLE J. SHEEHAN, P.J., and
EMANUELLA D. GROVES, J., CONCUR