State v. Mills , 2022 Ohio 4010 ( 2022 )

[Cite as State v. Mills, 2022-Ohio-4010.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110893
v. :
KENNETH V. MILLS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: November 10, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-645266-A
Appearances:
David Yost, Ohio Attorney General and Special Prosecutor
for Cuyahoga County, Matthew E. Meyer, Linda Majeska
Powers, and Daniel Kasaris, Assistant Attorneys General,
for appellee.
Flowers & Grube, Louis E. Grube, and Paul W. Flowers;
Kevin M. Spellacy, and Erin E. Hanson, for appellant.
CORNELIUS J. O’SULLIVAN, JR., J.:
{¶ 1} Defendant-appellant, Kenneth Mills, appeals his misdemeanor
convictions after a jury convicted him of two counts of falsification and two counts
of dereliction of duty. On appeal, he challenges the sufficiency of the evidence, the
trial court’s admission of evidence of inmate deaths, the jury instructions, and the
consecutive nature of his sentence. After a thorough review of the record and the
law, we reverse and remand for a new trial, finding that the trial court erred when it
allowed into evidence a photograph of a dying inmate and testimony about inmate
deaths at the Cuyahoga County jail.
I. Procedural History and Facts
{¶ 2} In October 2019, appellant was charged in a five-count indictment with
the following: Count 1: tampering with records, a third-degree felony, in violation
of R.C. 2913.42(A)(1) and (B)(4); Count 2: falsification, a first-degree misdemeanor,
in violation of R.C. 2921.13 (A)(1); Count 3: falsification, a first-degree
misdemeanor, in violation of R.C. 2921.13(A)(3); Count 4: dereliction of duty, a
second-degree misdemeanor, in violation of R.C. 2921.44(C)(2); and Count 5:
dereliction of duty, a second-degree misdemeanor, in violation of R.C.
2921.44(C)(5).
{¶ 3} In August 2021, the matter proceeded to a jury trial where over the
course of three weeks, the jurors heard testimony from 30 witnesses and over 250
exhibits were admitted into evidence. The jury returned a verdict of not guilty as to
the sole felony count in the indictment, Count 1, and guilty verdicts on the remaining
counts. The trial court merged Count 2 into Count 3, and Count 4 into Count 5 and
sentenced appellant to a consecutive nine-month jail sentence.
{¶ 4} In November 2009 (effective January 1, 2011), Cuyahoga County voters
approved a charter amendment creating a county council and county executive;
Cuyahoga County became one of two out of 88 counties in Ohio not governed by a
three-member commission. Following implementation of the county’s charter
amendment, many formerly elected positions became appointed positions,
including that of county sheriff. Armond Budish (“Budish”) was elected county
executive for a term commencing in January 2015. At the start of his term, Budish
directed every department to cut costs by ten percent and decided to regionalize the
jails by accepting municipal prisoners into county custody.
{¶ 5} In early 2015, Budish appointed Clifford Pinkney (“Pinkney” or “Sheriff
Pinkney”) to the position of Cuyahoga County Sheriff. Shortly thereafter, in
February 2015, Budish appointed appellant to a newly created position titled
“Director of Regional Corrections.” Appellant was to report to Chief Deputy Sheriff
George Taylor, who reported to Pinkney.
{¶ 6} Appellant was hired with the mandate to regionalize the county jail.1
Budish explained appellant’s appointment in a press release:
As Regional Director of Corrections, Mills will oversee emerging
collaborations and potential consolidations with jails county-wide. He
will also direct the operations of the Sheriff’s Department County Jail
after a long-term transition with the current, part-time County Jail
Wardens. The Regional Director of Corrections position will become a
self-sustaining position, with its salary offset over time by the revenue
generated from jail regionalization. As Regional Director of
Corrections, Mills will also ensure compliance with departmental
policy and standards and assist with developing and managing the
budget, among other responsibilities.
1 Appellant replaced Kenneth Kochevar, who was a longtime county employee and
the county’s “Jail Director.”
{¶ 7} Victor McArthur, former associate warden at the jail, testified that
“[j]ail regionalization is when one jail, like the county jail, becomes the hub for all of
the jails and all of the jails feed into county jail so inmates are processed one time
instead of in every jail that they visit.” Part of this plan, known as the “Cleveland
Project,” was designed to be a revenue generating plan where the county would
house inmates from the city of Cleveland at the county jail for a daily fee of $99 per
inmate.
{¶ 8} Appellant had a military background; he served in the Coast Guard.
After retiring from the Coast Guard, he was hired by the county as director of public
safety. As the director of public safety, appellant was the head of a medium-sized
department that included 9-1-1 operators, a witness-victim program, and county
emergency preparedness. Appellant did not, however, have any experience in
corrections or law enforcement. Philip Angelo, who was a special assistant with the
Cuyahoga County Sheriff’s Office, testified that he was involved in appellant’s
interview process and reviewed his resume. According to Angelo, it “did not seem”
like appellant had the training or qualifications to run a large jail, and Angelo ended
up not recommending him for the position of regional director. Sheriff Pinkney also
testified that he would not have hired appellant because he did not have law
enforcement or correctional experience.
{¶ 9} On paper, the director of regional corrections reported to the sheriff,
who in turn reported to the executive. Although appellant was to report to the
sheriff, the testimony reveals that appellant considered himself the sole overseer of
the county’s jails.
{¶ 10} It is undisputed that there have been ongoing problems with the
county jail that predate appellant’s employment. Two major issues central to this
case were overcrowding and staffing. The county jail’s capacity is approximately
1,765 inmates. Kochevar, appellant’s predecessor, testified that the county jail has
been overcrowded “[f]orever.” Joel Commins (“Commins”), who has been
employed as a jail inspector for the Ohio Department of Rehabilitation and
Correction’s Bureau of Adult Detention since 1998, has never “found the capacity to
be under 1765.” Former Cuyahoga County Jail Warden Eric Ivey testified that
overcrowding and staffing had been issues “since I started back in 1990.”
{¶ 11} The reasons for staffing issues were multi-faceted. Problems with
staffing corrections officers were the result of high turnover and, in later years, a
substantial number of call-offs every shift; Commins testified as many as 30-60
corrections officers would call off every shift. When a corrections officer called off
his or her shift, the corrections officer still on duty would be made to work an
additional four hours of overtime, which would lead that officer to call off his or her
next shift. Cuyahoga County Deputy Inspector General Sicily Woods testified that
turnover for corrections officers under appellant’s leadership increased 118 percent
between 2015 and 2018. She also testified that corrections officers made $15 per
hour, one of the lowest paid hourly wages for corrections officers in the state of Ohio.
{¶ 12} The short staffing led to the practice of “red zoning,” which, according
to FBI Special Agent Daniel Eyer, is the locking down of inmates within their cells,
at times for up to 20 hours a day. In these instances, one corrections officer would
be responsible for supervising two to four housing pods, or as many as 192 inmates,
instead of the 48 inmates in one pod that would be assigned to that officer under
ideal operating conditions. According to the agent, “the forced lockdown of inmates
into their cells had increased significantly after [appellant] had taken over.”
{¶ 13} The staffing issues were not limited to corrections officers. Multiple
witnesses testified that the jail never had enough nurses on staff. Earl Leiken,
Cuyahoga County Chief of Staff from 2018-2019, testified that Margaret Keenan,
director of the Cuyahoga County Office of Budget and Management (“OBM”),
emailed him to request an increase in wages for nursing staff. Keenan explained
that a nurse would make $28 per hour at the jail while the “industry standard” was
$38 per hour. When the county hired temporary nurses to fill the gaps in the
nursing staff, those nurses made the industry standard, which caused a “morale
issue” among the permanent nursing staff. MetroHealth Hospital Executive Vice
President of Administration and Chief of Staff Jane Platten explained at a May 22,
2018, Cuyahoga County Council Public Safety Committee Meeting that while
MetroHealth staffed most of the medical positions at the county jail, the county
alone controlled the staffing of nurses.
{¶ 14} Dr. Thomas Tallman was the county jail’s medical director pursuant
to a medical services contract between the county and MetroHealth. He testified
that he “constantly worked with [human resources]” in an effort to hire more nurses
and raised the issue at monthly staff meetings.
{¶ 15} In late 2015 and early 2016, an issue arose with the provision of
medical care to inmates at the county-run Euclid satellite jail. Dr. Tallman testified
that the facility, which currently did not have medical staff, required a full-time
nurse. Appellant told him that the current budget could not accommodate this
change and corrections officers could do medical screenings, even though they were
not trained to do so.
{¶ 16} On March 14, 2017, Dr. Tallman filled out a personnel request form
for two full-time nurses at the Euclid jail, explaining that the additional staffing was
mission critical based on the Regional Director of Corrections’ request
to maintain full inmate capacity at said facility. Furthermore, there
have been several inmates identified with serious medical needs that
were not immediately evaluated upon arrival to the jail facility.
{¶ 17} The personnel request form required the signatures of the department
director, OBM, agency chief, and human resources. On March 21, 2017, Sheriff
Pinkney signed off as the department director. Appellant, whose signature was not
required on the form, discovered the personnel request form and emailed Dr.
Tallman and OBM Director Keenan:
[ ] just informed me that you have submitted a request for an RN at
Euclid. Since you’re aware that is not in the budget, nor do I deem an
operational requirement, if you are transferring one of your current RN
positions or vacancies, that’s up to you, but there is no funding for any
additional staff.
Maggie [Keenan], * * * you always have the last say but I do not approve
nor have the funding for this.
{¶ 18} Keenan responded that she would not approve the personnel request
if a “director,” meaning appellant, did not approve the request, even though
appellant’s superior, Sheriff Pinkney, had already signed off on the request. Dr.
Tallman responded to Keenan’s denial of funding as follows, in an email dated
March 27, 2017:
I am the Medical DIRECTOR [sic] and I did review this. Your response
is disappointing but not a total surprise. My top priority is the health
and safety of the inmates including those at Euclid. Now I have an e-
mail that documents that funding was denied and I will reference this
in the future, especially if there’s a significant untoward event involving
patient care at the Euclid Jail.
{¶ 19} The involved parties met to discuss the issue on March 30, 2017, after
which Dr. Tallman sent an email to appellant, Sheriff Pinkney, Public Safety Chief
Frank Bova, and Keenan, that stated: “In regards to Euclid, moving forward, [s]ince
the Sheriff has the final word, as he stated, and he did sign off on the request for 2
RN’s at Euclid, I anticipate this is moving forward.” Appellant responded that there
was no money in the budget to hire nurses and they could not hire nurses until the
county started housing Cleveland inmates.
{¶ 20} In the agreement negotiated between the city of Cleveland and county
administration, the county jail would accept “fresh arrests” from the city in return
for $99 per day of confinement and a one-time payment of $5.6 million. County
council considered and enacted the deal as a “revenue generating agreement,” which
took effect on September 26, 2017. It appears, however, that the county jail facilities
were not ready to accept the additional intake responsibilities of as many as 40
additional fresh arrests a day, including intoxicated and violent people, and those
with medical and mental health issues. Dr. Tallman informed appellant that “all
necessary additional staff” needed to be “hired and in place before we assume
responsibilities for healthcare operations” for the city of Cleveland. Appellant told
Dr. Tallman that the jail needed to generate revenue from the inmates before the
additional medical staff would be hired.
{¶ 21} The county also opened a satellite jail in Bedford Heights, commonly
known as the Bedford jail, in May 2018. Testimony and email exchanges that were
entered into evidence reveal that the medical staff was likewise concerned that there
was not proper staffing of the Bedford jail.
{¶ 22} Conditions at the county jail worsened starting in March and April of
2018 as the fresh arrests from Cleveland overwhelmed the facility. Keenan testified
“[i]n April 2018 there was absolutely no denying that we were in crisis.” She
explained:
The temporary nurses were making much, much more than our nurses
and so our nurses were quitting at an increased rate because they said
you can pay [the temporary nurses] but you can’t pay [the permanent
nurses]. And we were just bleeding staff. And also meanwhile the
population in the jail was going up, up, up. And they were Cleveland
prisoners. And I mean, that’s fine. But the Cleveland inmates come in
with a host of problems that we had never seen before. So we can’t
afford to be short staffed when we are bringing in Cleveland inmates.
{¶ 23} When asked whose job it was to have planned for the new inmates,
Keenan responded, “Ken Mills.” Nursing Supervisor Gary Brack testified that at one
point medical staff had not performed the required 14-day medical screenings on
800 out of 2,200 county jail inmates solely because they lacked the medical staff to
complete the screenings.
{¶ 24} In May 2018, the Cuyahoga County Board of Control flagged a request
for funding for temporary nurses and referred the matter to the Cuyahoga County
Council’s Justice Affairs Committee. Apparently concerned, County
Councilmember Michael Gallagher invited members of the Sheriff’s Department
and “anyone that had anything to do with the medical [issues] in the jail” to attend
the May 22, 2018 Cuyahoga County Council Public Safety Committee meeting. The
meeting was recorded, played for the jury, and entered into evidence.
{¶ 25} During the meeting, Gallagher asked appellant if he had been the
“blockade” to hiring nurses and whether hiring requests had gone across appellant’s
desk and stopped. Appellant replied, “That’s not true, they don’t come to me, that
is absolutely not true. Hire requests do not come through me. They go through the
Sheriff, and I can’t overturn anything the Sheriff signs.” Gallagher repeated: “So you
have not blocked anything?” Appellant stated, “No, sir. I’ve never blocked hiring
nurses to come into the jail.”
{¶ 26} Conditions at the county jail continued to decline through 2018, and
several inmates died by overdose or suicide. Finally, Budish asked the United States
Marshals Service to investigate the county jail. On November 14, 2018, Budish met
with appellant in advance of the release of the U.S. Marshal’s report. Budish
terminated appellant from his position as regional director of corrections.
{¶ 27} In 2020, the county closed both the Euclid and Bedford satellite jails
and those inmates were transferred to the main jail.
II. Assignments of Error
I. The trial court erred by failing to grant the Motion for Judgment of
Acquittal as to the crimes of falsification and dereliction of duty
because the State presented insufficient evidence to sustain a guilty
verdict.
II. The trial court erred by permitting introduction of substantial
evidence of other wrongs and bad acts in violation of Evid.R. 403(A)
and 404(B).
III: The trial court erred by denying a request for a jury instruction
requiring jurors to render unanimous verdicts.
IV: The trial court erred by deleting statutory language from a jury
instruction explaining the offense of derogation of duty and permitting
jurors to decide what the law required
V: The trial court erred by ordering the defendant to serve his
misdemeanor sentences consecutively.
III. Law and Analysis
A. Sufficiency of the Evidence
{¶ 28} In the first assignment of error, appellant contends that there was
insufficient evidence to support his convictions for dereliction of duty and
falsification.
{¶ 29} Sufficiency of the evidence is a legal standard that tests whether the
evidence introduced at trial is legally sufficient to support a verdict. State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). We examine the
evidence in the light most favorable to the state and determine whether any rational
trier of fact could have found that the state proved, beyond a reasonable doubt, all
the essential elements of the crime. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d
492 (1991). In reviewing the sufficiency of the evidence, this court must not ‘“disturb
the verdict unless [the court] determine[s] that reasonable minds could not arrive
at the conclusion reached by the trier of fact.’” State v. Dixon, 8th Dist. Cuyahoga
No. 110972, 2022-Ohio-2582, ¶ 20, quoting State v. Saleh, 10th Dist. Franklin No.
07AP-431, 2009-Ohio-1542, ¶ 81. “Reviewing courts do not evaluate witness
credibility when reviewing the sufficiency of the evidence.” Dixon at id. citing Saleh
at id.
1. Dereliction of Duty – Appellant was an “Officer” Under the Statute
{¶ 30} Count 4 and Count 5 charged dereliction of duty under R.C.
2921.44(C)(2) and (C)(5), respectively. R.C. 2921.44(C) states:
(C) No officer, having charge of a detention facility, shall negligently do
any of the following:
(2) Fail to provide persons confined in the detention facility with
adequate food, clothing, bedding, shelter, and medical attention;
(5) Fail to observe any lawful and reasonable regulation for the
management of the detention facility.
{¶ 31} Appellant contends that the state failed to prove that he was an
“officer”; therefore, he could not be convicted of dereliction of duty. Appellant does
not dispute that he was in charge of jail; the record is replete with references to
appellant’s authority over the jail. Moreover, appellant stated in his brief on appeal
that the sole issue of the dereliction-of-duty convictions is whether appellant is an
officer. Thus, we must determine whether the state provided sufficient evidence that
appellant was an “officer” under the statute. We answer that question in the
affirmative.
{¶ 32} Appellant contends that the term “officer” is akin to that of a law
enforcement officer, one who has been appointed by the sheriff, has arrest powers,
or has taken a sworn oath. The term “officer” is not defined in the statute. R.C.
2921.44(A) and (B), prohibit certain actions by “law enforcement officers,” but
appellant was charged under subsection (C), where the state legislature chose to use
the more general term “officer.”
{¶ 33} “In the absence of a definition of a word or phrase used in a statute,
words are to be given their common, ordinary, and accepted meaning.” State v.
Nelson, 162 Ohio St.3d 338, 2020-Ohio-3690, 165 N.E.3d 1110, ¶ 18, quoting State
v. Black, 142 Ohio St.3d 332, 2015-Ohio-513, 30 N.E.3d 918, ¶ 39. To this end, we
observe that Black’s Law Dictionary defines “officer” as “[s]omeone who holds an
office of trust, authority or command.” Black’s Law Dictionary 1307 (11th Ed.2019).
Because the term “officer” is not defined in the statute, we must utilize its plain and
ordinary meaning to decide whether the state provided sufficient evidence that
appellant held an office of trust, authority, or command.2
2 We can also find guidance in R.C. 2921.37, which provides that “the person in charge of a
detention facility has the same power as a peace officer to arrest a person who illegally
conveys weapons or other prohibited items onto the grounds of specified governmental
facility.” Additionally, while the Ohio Administrative Code also does not define an “officer”
as it relates to R.C. 2921.44; the “Glossary of Terms” in Chapter 5120:1-7 Bureau of Adult
Detention provides:
{¶ 34} Appellant was appointed by Budish to the position of director of
regional corrections. The government at the county level in Cuyahoga County is
governed by a charter, which provides that the position of sheriff is appointed and
the county executive has the power to “appoint, suspend, discipline and remove all
county personnel.” Cuyahoga County Charter Article XIV, Section 16.01, and Article
II, Section 2.03(1). The county executive, through the human resources department,
oversees the employment of the county’s 550 civilian corrections officers — not the
sheriff. Budish appointed appellant to “oversee emerging collaborations and
potential consolidations with jails county-wide,” “direct the operations of the
Sheriff’s Department County Jail,” “ensure compliance with departmental policy
and standards,” and “assist with developing and managing the budget.”
{¶ 35} Sheriff Pinkney testified that appellant was the “jail administrator.”
According to Pinkney, he began to have problems with appellant sometime in 2015
when appellant questioned why Pinkney was physically inside the county jail.
Appellant went so far as to change the locks so Pinkney could not access the jail.
Pinkney testified:
(B) As used in rules * * * 5120:1-8-01 to 5120:1-12-18 of the Administrative
Code, the following terms have the meanings indicated in this rule:
(1) “Administrators and supervisors”: Persons who have managerial
responsibility for a full-service jail or who supervise employee security
assignments or activities in the jail.
Ohio Adm.Code 5120:1-7-02(B)(1).
[Appellant] wanted to control the jail budget, which was 70 percent of
the overall sheriff’s office budget and he wanted to control that portion
of the budget because he ran the jail.
{¶ 36} Pinkney testified that appellant was trying to separate his department
from that of the county sheriff, so that he (appellant) could have total autonomy over
the jail without interference from the sheriff. Pinkney did not feel as though he had
authority to direct or discipline appellant, even though he was appellant’s superior.
{¶ 37} Donna Kaleal, the county fiscal director, testified that appellant “was
in charge of the county jail. * * * He was in charge of regionalizing some of the other
jails within the city like the Bedford jail or the Euclid jail so he would be in charge of
those jails. * * * [H]e was in charge of the inmates and the corrections center.”
Kaleal further testified that appellant “took over the entire budgeting process for the
Cleveland Project.”
{¶ 38} Considering the significant evidence that appellant had a position of
trust, authority, or command over the Cuyahoga County jail, we find that the state
provided sufficient evidence that appellant was an officer under the statute.
2. Falsification – Sufficient Evidence that Appellant Lied to County
Council
{¶ 39} Next, appellant argues that the state failed to provide sufficient
evidence that he made a false statement to county council. The crime of falsification
requires:
(A) No person shall knowingly make a false statement, or knowingly
swear or affirm the truth of a false statement previously made, when
any of the following applies:
(1) The statement is made in any official proceeding.
(3) The statement is made with purpose to mislead a public official in
performing the public official’s official function.
R.C. 2921.13(A)(1), (3).
{¶ 40} During the May 22, 2018 Cuyahoga County Council Public Safety
Committee meeting, Councilmember Gallagher asked appellant if he had been the
“blockade” to hiring nurses and whether hiring requests had gone across appellant’s
desk and stopped. Appellant replied: “That’s not true, they don’t come to me, that
is absolutely not true. Hire requests do not come through me, they go through the
Sheriff, and I can’t overturn anything the Sheriff signs.” Gallagher repeated, “So you
have not blocked anything?” Appellant stated, “No, sir. I’ve never blocked hiring
nurses to come into the jail.”
{¶ 41} Roughly a year earlier, however, on March 14, 2017, Dr. Tallman filled
out a personnel request form for two full-time nurses at the Euclid jail, explaining
that the additional staffing was
mission critical based on the Regional Director of Corrections request
to maintain full inmate capacity at said facility. Furthermore, there
have been several inmates identified with serious medical needs that
were not immediately evaluated upon arrival to the jail facility.
{¶ 42} The personnel request form did not require appellant’s signature and
Sheriff Pinkney signed off as the department director. When appellant found out
about the personnel request form, he emailed the involved parties and stated:
[Y]ou have submitted a request for an RN at Euclid. Since you’re aware
that is not in the budget, nor do I deem an operational requirement, if
you are transferring one of your current RN positions or vacancies,
that’s up to you, but there is no funding for any additional staff.
Maggie [Keenan], * * * you always have the last say but I do not approve
nor have the funding for this.
{¶ 43} Keenan replied to Dr. Tallman a short time later, telling him that she
could not support staff requests that lacked appellant’s approval. The parties
eventually met, after which Dr. Tallman again emailed stating that it was his
understanding that Sheriff Pinkney signed off on the request for nurses. Appellant
disagreed, stating that that there was no money in the budget to hire nurses and they
could not hire nurses until the county started housing Cleveland inmates.
{¶ 44} At trial, Keenan testified that she worked closely with appellant and
allowed appellant to circumvent Sheriff Pinkney and go directly to her on issues that
would “cut spending or raise revenue.” When asked if appellant interfered with the
hiring of nurses in any of the jail facilities, Euclid, Bedford, or the main jail, Keenan
testified, “Yes.”
{¶ 45} Sheriff Pinkney also testified that appellant interfered with the hiring
of nurses at county jail. He testified that “once [appellant] was made aware that the
request was made to hire nurses he didn’t feel that there [were] nurses needed so he
contacted OBM telling OBM not to hire the nurses, to deny this request.”
{¶ 46} Appellant points to an April 2017 email Sheriff Pinkney sent stating
that “we should hold off [on the hiring of nurses] until the Cleveland Project is done”
as support for his position that Sheriff Pinkney made the hiring decisions and
appellant had no authority to block the hiring of nurses. MetroHealth’s Jane Platten
testified, however, that appellant “blocked the hiring of nurses” and the email was
Sheriff Pinkney “agreeing [with appellant] to hold off” hiring the nurses. Platten
testified:
Q. Dr. Tallman reports to whom?
A. Chief Deputy George Taylor.
Q. And the chief reports to whom?
A. Clifford E. Pinkney.
Q. So Dr. Tallman fills out a personnel request form?
A. Yes.
Q. The sheriff approves it?
A. Yes.
Q. Is Ken Mills in that particular chain of command?
A. No.
Q. But what does Ken Mills do on March 23rd, 2017?
A. He sends an e-mail saying there’s no money in the budget and there’s
not a need for it.
{¶ 47} Brack testified he was employed from 2015-2018 with MetroHealth as
a nursing supervisor working directly with the county jail. Brack testified that based
on his personal knowledge, appellant “blocked the hiring of nurses.” According to
Brack, appellant contacted Keenan and told her “not to approve positions, not to
fund those positions.” He testified that appellant was the roadblock by “obstructing
and not allowing us to hire” nurses.
{¶ 48} Finally, Dr. Tallman testified that he and Brack prepared a bullet
pointed statement for county council. Dr. Tallman read the statement and it was
entered into evidence as exhibit No. 117:
MetroHealth Correctional Health Program v. Ken Mills
For the past 2 years, Mills obstructed all attempts to increase staffing
or improve operations, yet operational demands have increased
exponentially.
Despite staffing shortages in the medical department, adding Euclid
Jail, City Jail, and now Bedford Jail has further increased staffing
demands. At no time has the medical department been a part of the
meeting to plan and prepare for these additional demands.
In March 2017, Dr. Tallman submitted emergency staffing requests for
two RN’s to staff Euclid Jail, which the Sheriff signed off. Ken Mills and
Maggie Keenan blocked it and refused to pay for it. To this day we have
never had nursing staff devoted to the Euclid Jail and yet the inmate
population is maintained at 60 - 70. This includes fresh arrests and
inmates on medications: a huge liability.
When presented with data that supports the fact that altercations in the
jail have increased in 2018, Mills refutes the facts. Frequent “red
zoning” contributes to this increase in injuries sustained due to
altercations.
Since Mills took over as regional director, he has redistributed
correctional officers while subtracting the number of officers dedicated
to the 6th floor dispensary.
The recent addition of inmates from the city jail has led to an intake
increase > 100 percent, but we were provided zero additional staff to
deal with this increase. Intake area is frequently overcrowded and
unsafe.
The Bedford Jail recently came online without proper healthcare
staffing in place. Go live dates were known for months in advance but
never shared with the medical department. Healthcare staffing
estimates initially submitted over 2 years ago, but completely ignored
while at the same time, additional correctional officers were hired.
The medical department was told that there would be almost no
perceived impact on healthcare operations when we started taking on
city jail inmates. On the contrary, we have seen as many as 80 - 90
intakes coming in after 7 p.m. and not 1 additional RN was hired (as
requested) in anticipation of this workload increase.
Decisions that impact the medical department including policies and
procedures are constantly made and put into effect by Mills with no
input from healthcare management.
{¶ 49} Looking at the evidence in a light most favorable to the state, there
was sufficient evidence that appellant was not truthful when he told county council
that he never blocked the hiring of nurses for the Cuyahoga County jails. Even
disregarding what could be considered other witnesses’ opinion of whether
appellant told the truth at the meeting, the evidence shows that appellant
consistently refused to allow the hiring of nurses while he told county council that
he did not block said hiring. Thus, there was sufficient evidence to support
appellant’s conviction for falsification.
{¶ 50} The first assignment of error is overruled.
B. Improper Admission of Evidence Regarding Deaths in the County
Jail
{¶ 51} In the second assignment of error, appellant argues that the trial court
improperly admitted evidence in contravention of Evid.R. 403(A) and 404(B).
{¶ 52} Evid.R. 403(A) provides that “[a]lthough relevant, evidence is not
admissible if its probative value is substantially outweighed by the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury.” Evid.R 404(B)
provides:
(B) Other crimes, wrongs or acts.
(1) Prohibited uses. Evidence of any other crime, wrong or act is not
admissible to prove the person’s character in order to show that on a
particular occasion the person acted in accordance with the character.
{¶ 53} “[T]rial court decisions regarding the admissibility of other-acts
evidence under Evid.R. 404(B) are evidentiary determinations that rest within the
sound discretion of the trial court.” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-
2407, 972 N.E.2d 528, ¶ 22. “Appeals of such decisions are considered by an
appellate court under an abuse-of-discretion standard of review.” Id. Likewise,
when reviewing a trial court’s decision to admit evidence pursuant to Evid.R.
403(A), “[t]he appropriate standard of review is the abuse of discretion standard.”
State v. Wright, 8th Dist. Cuyahoga No. 108026, 2019-Ohio-4460, ¶ 49. ‘“[T]he
trial court has broad discretion in the admission * * * of evidence and unless it has
clearly abused its discretion and the defendant has been materially prejudiced
thereby, this court should be slow to interfere.’” Id., quoting State v. Maurer, 15
Ohio St.3d 239, 265, 473 N.E.2d 768 (1984). “In order for the evidence to be deemed
inadmissible, its probative value must be minimal and its prejudicial effect great
[when] viewed in a light most favorable to the proponent of the evidence[.]”
(Citations omitted.) Wright at ¶ 50.
{¶ 54} 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. Such an abuse “‘“implies that the court’s attitude is unreasonable,
arbitrary or unconscionable.’”” State v. Montgomery, Slip Opinion No. 2022-Ohio-
2211, ¶ 135, quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d
1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
See also State v. Acosta, 8th Dist. Cuyahoga No. 111110, 2022-Ohio-3327, ¶ 43; State
v. Parker, 8th Dist. Cuyahoga No. 110563, 2022-Ohio-377, ¶ 11.
{¶ 55} Appellant argues that the trial court (1) improperly allowed evidence
that inmates died in the jail under appellant’s leadership, and (2) improperly
allowed evidence that appellant made negative personal comments about and
treated jail medical corrections staff poorly.
1. Admitted Evidence of Inmate Deaths
a. State’s Opening Statement
{¶ 56} From the first lines of the state’s opening argument, the state
discussed the deaths in the county jail. After briefly thanking the jury and explaining
the purpose of opening arguments, the state launched into a lengthy story about the
untimely death of Joseph Arquillo, who was only 48 years old when he died within
the first eight hours of being booked into the county jail in August 2018. As told by
the state:
[A]t 3:00 a.m. in the morning of August 28th, 2018, sheriff’s deputies
booked a 48 year-old gentleman named Joseph Arquillo into the
Cuyahoga County Jail. Like a lot of people in our society Mr. Arquillo
was addicted to drugs. He was a Navy veteran who had been hooked
on painkillers and when he was arrested, and we don’t know exactly
when, but sometime near his arrest he ingested a quantity of opiates
that would eventually cause him to overdose and die.
He was taken to a place in the jail known as the sally port. And you are
going to see evidence in this case of what the jail looked like in 2018.
What I’m showing you is where Mr. Arquillo ended up. It was an area
of the jail known as the 3-G pod.
Now, Mr. Arquillo’s overdose was not like what you see on TV. He
suffered a slow-motion kind of death that lingered over eight hours
where it was difficult for him to breathe. He was brought through the
intake process, and he was never seen by a medical person. No one ever
checked his blood pressure, no one ever asked for his medical history,
no one asked if he was thinking of harming himself, no one asked if he
had taken something that might hurt him.
He was taken up to that 3-G pod and left there and ignored where about
eight hours later he died. * * *
Mr. Arquillo never got screened by a medical person. He bypassed that
process entirely, went right up to the pod and he eventually died,
ignored and alone, in this area of the jail where inmates — there were
so many inmates, it was so overcrowded that people were sleeping on
the floors.
So, what happened to Mr. Arquillo, how a routine probation violation
arrest turned into a death sentence was part of an overall breakdown in
safety conditions of 2018 that culminated in the deaths of the six people
between June and December of 2018. You are going to hear testimony
that deaths do occur in the jail. It’s a tragic reality of operating a jail. It
does happen. But you’re also going to hear that they are relatively
rare[,] and no one has ever seen[,] before or since[,] anything like the
number of deaths that occurred in this jail between June and December
of 2018.
As tragic as those deaths were though, many people who worked in the
jail had predicted that they would happen. They also said the jail
should have been able to prevent those deaths. They had warned the
jails head administrator, a man named Ken Mills, the defendant in this
case, who had the title of Director of Regional Corrections, that the
things he was doing to manage the jail would get people hurt or killed.
{¶ 57} During opening argument, the state also mentioned the death of well-
known Cleveland native rhythm & blues singer Sean Levert, who died in the
Cuyahoga County jail in 2008, ten years prior to appellant’s appointment as
Regional Director. Levert’s death is mentioned by witnesses numerous times
throughout trial.
b. Deputy Inspector General’s Testimony
{¶ 58} Deputy Inspector General Woods testified that the Cuyahoga County
Inspector General initiated an investigation into the conditions in the jail due to the
multiple deaths occurring in the jail and assigned Woods to be the lead investigator.
Woods testified from her report:
In 2018 eight citizens died after entering the Cuyahoga County
Correctional Center or CCCC. In September, 2018 in response to the
first four deaths the Agency of Inspector General, AIG, initiated an
investigation into the conditions of the county jail. Later that month
after the deaths of two more detainees, the county executive, as
required by County Code section 204.01, the AIG suspended its
investigation in order to avoid any interference with the federal review.
c. County Councilmember’s Testimony
{¶ 59} As to the deaths in the jail, Councilmember Gallagher testified:
Q. And ha[d] events occurred in the Cuyahoga County Jail between
June of 2018 and December of 2018 that could render the county
liable?
A. If I’m correct, I think we have a death.
Q. How many?
A. I remember the first one. It was soon after this meeting. And might
have been two up until that time. Unfortunately, they run together.
Q. Do you remember about six or eight of them?
A. That was a string I think over a period of time.
d. OBM Director’s Testimony
{¶ 60} OBM Director Keenan testified regarding the 2008 death of Sean
Levert:
A. * * * A shortage of nurses creates risk. The county settles a lot of
medical-related lawsuits, the most significant of course was the Levert
death. * * * Sean Levert was an inmate in the county jail and he passed
away in the county jail from — I believe it was withdrawal and the
county settled — so the county was sued for wrongful death and the
county settled that lawsuit.
Q. How much did it cost the taxpayers[,] if you know?
A. $5 million.
e. Sergeant’s Testimony
{¶ 61} Cuyahoga County Sheriff’s Sergeant Mark Thevenin identified exhibit
No. 165; a picture taken from the jail’s security camera in the 3-G pod; the picture
was entered into evidence. One of the men in the picture is Arquillo, who was sitting
on the ground bent over, but still alive. Sgt. Thevenin testified as follows:
Q: I’m going to show you a picture which we’ve marked as Exhibit 165
* * *.
A. That would be the third floor.
Q. Okay. So that is what exactly? Do you recognize that image?
A. This is Arquillo * * *.
Q. Is that an inmate?
A. That is Arquillo. I believe this is the day he passed away. He pretty
much [overdosed] down there. * * * So when he’s down here passing
away, if you’re not making the round or moving through here you’ll
never know because you can’t see him there. * * *
Q. So on August 28th of 2018 did you respond to this scene in the 3-G
dorm?
A. Yeah. There was a medical emergency called in that area. So I was
the — I say, I was the admin sergeant in Jail 1. I responded with other
corporals and sergeants. * * *
Q. Did the jail security camera record the date and time the image
would have been recorded?
A. Yes, sir.
Q. Can you just read the date and time?
A. 8-28-2018. Says, 11:34 a.m.
f. Brandon Kiekisz
{¶ 62} Brandon Kiekisz died by suicide in the Cuyahoga County jail on
December 27, 2018, after appellant was terminated from his position. Although no
one mentioned Kiekisz by name as an inmate who had died in the jail, Corrections
Officer Rob Marsh testified that Kiekisz was not screened by the medical staff. Dr.
Tallman also testified Kiekisz was not screened by medical staff and that “after the
event with Kiekisz,” he decided to move medical intake from the seventh floor back
down to the sally port where inmate intake occurred.
g. Exhibit No. 165
{¶ 63} Exhibit no. 165 was an image taken from the county jail’s security
camera, that showed Joseph Arquillo sitting on the floor, folded over his mattress,
shortly before he died.
2. State’s Justification for Admitting Evidence of Inmate Deaths
{¶ 64} The state argues that the evidence of jail deaths had “direct and
probative value” to the dereliction-of-duty charges and were part of the “background
evidence inextricably linked with the breakdown in jail conditions that led to the
dereliction of duty charges.” Appellee’s brief, p. 20. The evidence of inmate deaths,
the state posits, was also admissible to show the background of the crimes with
which appellant was charged, or because the other acts were “inextricably related to
those crimes.” Id., citing State v. Lowe, 69 Ohio St.3d 527, 531, 634 N.E.2d 616(1994).
{¶ 65} The state further argues that (1) appellant separated medical
screening from the booking process, believing that corrections officers — not nurses
— should perform the medical screenings, which caused the jail to overlook injured
and highly disturbed inmates during booking; (2) appellant had been warned that
inmates would die without adequate medical staff or medical care; and (3) the direct
byproduct of appellant’s decisions led to the jail’s failure to medically care for
inmates like Arquillo, who were experiencing life-threatening problems during
intake. Thus, according to the state, the jail deaths were highly probative to
demonstrate the consequences of appellant’s interference with jail medical
decisions, which in turn directly went to the issue of whether appellant negligently
failed to provide inmates with adequate medical care. Finally, the state argues that
the 2018 jail deaths explained why the county asked the U.S. Marshals Service to
investigate the jail, and why appellant was the “public official most responsible for
the resulting outcome.”
3. Admission of Prejudicial Evidence Deprived Appellant of a Fair Trial
{¶ 66} The admissibility of other acts evidence is carefully limited because of
the substantial danger a jury will convict a defendant solely because it assumes the
defendant has a propensity to commit criminal acts or deserves punishment
regardless of whether he or she committed the crime charged in the indictment.
State v. Hernandez, 8th Dist. Cuyahoga No. 108265, 2019-Ohio-5242, ¶ 37. The
dissent contends that Evid.R. 404(B) is inapplicable to this case. Even if we were to
assume without accepting that Evid.R. 404(B) does not apply, Evid.R. 403 excludes
relevant evidence if its probative value is substantially outweighed by the danger of
unfair prejudice. We find that any evidence of inmate deaths, whether admitted
pursuant to Evid.R. 403 or 404(B), was inadmissible.
{¶ 67} Having found that the trial court erred in allowing the evidence of
inmate deaths, we must determine whether that error is harmless. Crim.R. 52(A)
provides that “[a]ny error, defect, irregularity, or variance which does not affect
substantial rights shall be disregarded.” Under the harmless-error standard of
review, the state “bears the burden of demonstrating 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, citing United States v. Olano, 507 U.S. 725, 741, 113 S.Ct.
1770, 123 L.Ed.2d 508 (1993). In most cases, in order to be viewed as “affecting
substantial rights,” “‘the error must have been prejudicial[.]’” (Emphasis deleted.)
State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7, quoting
Olano at 734. Accordingly, Crim.R. 52(A) requires a determination of whether the
rights affected are “substantial” and, if so, whether a defendant has suffered any
prejudice as a result. State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24
N.E.3d 1153, ¶ 24-25.
{¶ 68} In State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d
1256, the Ohio Supreme Court reiterated the three-part analysis established
previously in Morris to guide appellate courts in determining whether the erroneous
admission of evidence affected the defendant’s substantial rights so as to require a
new trial or whether the admission of that evidence was harmless error under
Crim.R. 52(A):
First, it must be determined whether the defendant was prejudiced by
the error, i.e., whether the error had an impact on the verdict. * * *
Second, it must be determined whether the error was not harmless
beyond a reasonable doubt. * * * Lastly, once the prejudicial evidence
is excised, the remaining evidence is weighed to determine whether it
establishes the defendant’s guilt beyond a reasonable doubt.
Harris at ¶ 37, citing Morris at ¶ 27-29. Thus, we look at whether these multiple,
combined errors had an impact on appellant’s guilty verdicts, whether those errors
were not harmless beyond a reasonable doubt, and, once the prejudicial evidence is
taken out, is there overwhelming evidence of appellant’s guilt?
{¶ 69} During opening argument, the state told the jury that appellant was
warned that “people were going to die” in the jail. Defense counsel objected and the
court overruled the objection, telling the jury, “Mr. Mills is not charged with causing
any specific death or injury to any specific inmate.” Before the state’s 11th witness,
Sgt. Thevenin, took the stand, the court determined that it would allow testimony of
inmate deaths “on a limited basis” to show that some inmates had not been
medically screened when they entered the jail. Although the court instructed the
state to be cautious, the court still allowed the state to enter into evidence an image
showing Arquillo, bent over on the ground, shortly before he died (State’s exhibit
No. 165). The court also allowed a significant number of witnesses to provide
testimony about inmate deaths that occurred both while appellant was regional
director and while he was not even employed by the county.
{¶ 70} Only after 14 of the state’s witnesses had testified, did the court finally
decide that it would no longer allow witnesses to utter the word “death” or testify
that inmates died while in the county jail. At this juncture, the trial court issued a
limiting instruction to the jury that appellant was not charged with causing the death
of any inmate:
Kenneth Mills is not charged with causing the death of any particular
inmate. There were policy changes that he made that the evidence has
shown already in terms of screenings done or not done. But that does
not transfer to, because a screening was done or not done that that was
the cause of the inmate’s death. That inmate may have died anyway.
So he’s not charged with any death as a result that happened in the jail.
So I want to reemphasize that point to you and I’m instructing you to
consider that also in light of the testimony.
{¶ 71} “In a case where the evidence is of a particularly inflammatory nature,
a curative instruction may be insufficient to cure the prejudicial effect.” Hernandez,
8th Dist. Cuyahoga No. 108265, 2019-Ohio-5242, at ¶ 37, citing State v. Patterson,
5th Dist. Stark No. 2017CA00022, 2017-Ohio-8970. The above instruction alone
leaves open the suggestion that appellant is not “charged” with any particular death
but is responsible for all of them.
{¶ 72} From opening statement through the testimony of several witnesses,
the state was able to introduce significant prejudicial testimony and evidence of
multiple inmate deaths, even though appellant was not charged with any crime in
connection with their deaths. We find the security camera image of Arquillo to be a
most egregious and prejudicial piece of evidence and the state’s reason for its
admission incredible. Sgt. Thevenin testified that Arquillo was still alive when the
security camera captured the image the state entered into evidence as state’s exhibit
No. 165. In opening arguments, the state said that Arquillo died approximately eight
hours after being taken into custody at 3:00 a.m. on August 28, 2018. According to
Sgt. Thevenin, the time stamp on the image is 11:34 a.m., eight and one-half hours
after Arquillo was booked into the jail. Thus, while Arquillo may have still been alive
while the image was taken, the image was captured very close in time to when he
passed away.
{¶ 73} Despite this, the state argues that the image was “highly probative
evidence both of overcrowding conditions and the lack of proper medical care,” and
the dereliction-of-duty charges “accused [appellant] of negligently failing to provide
inmates with adequate bedding, shelter[,] and medical attention.” “Images from the
Arquillo incident showed the profound levels of overcrowding that caused inmates
to have to sleep on the floor.” Appellee’s brief, p. 20.
{¶ 74} The state’s argument that it introduced the security camera image into
evidence to show jail overcrowding lacks credibility. The image shows a rather large
space with three men, including Arquillo, on mattresses on the floor, and a small
group of other men in another area of the room. If the state wanted to show that the
jail was overcrowded, there was ample other testimony to support its argument.
Nursing Supervisor Brack testified that state’s exhibit No. 170 showed the third-floor
housing unit, where he observed mats and inmates on the floor. Deputy Inspector
General Woods testified that in the same housing unit, inmates would have to sleep
with their head or feet under toilets because the jail was so crowded. She further
testified that in other areas of the jail, a single occupancy cell would have two
inmates in it and these inmates were often locked in their cells for 20 hours a day
due to staffing issues. As to the state’s proposition that the image was probative to
show the lack of proper medical care, the trial was replete with testimony that
inmates did not receive proper medical care due to the shortage of medical staff,
namely nurses.
{¶ 75} State’s exhibit No. 165 had little to no probative value; it was used
solely to inflame and improperly influence the jury — the fact that it showed a dying
inmate and witnesses testified about this inmate’s death was decidedly prejudicial
and we cannot say beyond a reasonable doubt that the error was harmless.
{¶ 76} Considering the testimony about Brandon Kiekisz, although the
testimony may not have been in and of itself reversible error, we do not consider the
testimony about him in a vacuum. We consider the testimony in light of the other
inadmissible testimony and evidence admitted at trial. In doing so, we also cannot
find beyond a reasonable doubt that the testimony cited above, and the statements
given by the state in opening arguments regarding inmate deaths, were not harmless
beyond a reasonable doubt.
{¶ 77} Next, we consider whether the remaining evidence provided
overwhelming evidence of guilt and if the prejudice to appellant was so
overwhelming as to outweigh the evidence against him. Although the evidence as to
the dereliction of duty counts was strong, especially in light of the fact that appellant
only contested whether he should be considered an “officer,” we find that the
evidence supporting the falsification counts was less so.
{¶ 78} The dissent focuses on the third prong of Harris and finds that the
evidence of appellant’s guilt is “so overwhelming” and the prejudicial effect of the
inmate deaths is “so insignificant” by comparison that, coupled with the court’s
limiting instructions, any error was harmless. There may have been sufficient
evidence to support appellant’s convictions, but the evidence was not “so
overwhelming” as to overcome the pervasive and highly prejudicial testimony of
inmate deaths. From the first minutes of trial until the court finally realized, 14
witnesses into the case, that the state was tainting the jury, the court allowed the
state to dramatically describe deaths of inmates before, during, and after appellant’s
tenure as regional director of corrections.
{¶ 79} There is no dispute the conditions of the Cuyahoga County jail were
deplorable, and that “red zoning” was used. The state’s case, however, centered
around the inmate deaths. Contrary to the dissent’s position that the state entered
evidence of three inmate deaths, the state entered evidence of at least nine inmate
deaths. The state began its opening argument discussing, in length, the death of
inmate Arquillo. The state informed the jury “you’re also going to hear that [inmate
deaths] are relatively rare[,] and no one has ever seen[,] before or since[,] anything
like the number of deaths that occurred in this jail between June and December of
2018.” (Emphasis added.) While only three inmates were referred to by name,
Deputy Inspector General Woods testified that eight inmates died in the jail in 2018.
Councilmember Gallagher testified that there was a string of deaths from June to
December 2018. Multiple witnesses mentioned the 2008 death of Sean Levert.
Thus, the number of inmate deaths the jury heard about was at least nine.
{¶ 80} Although the trial court gave minimal limiting instructions, the
inherently prejudicial nature of the state’s opening argument, witness testimony,
and the photograph cannot be cured by a limiting instruction. See State v. Creech,
150 Ohio St.3d 540, 2016-Ohio-8440, 84 N.E.3d 981, ¶ 39 (noting that a limiting
instruction was insufficient to overcome the prejudice of the improperly admitted
evidence); State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶ 50
(French, J., concurring in judgment only) (explaining that a limiting instruction
does not guarantee admissibility when the danger of unfair prejudice substantially
outweighs the evidence’s probative value).
{¶ 81} Finally, we note that the conduct of the prosecutor “may combine with
an evidentiary error to cause greater impact.” Morris, 141 Ohio St.3d 399, 2014-
Ohio-5052, 24 N.E.3d 1153, at ¶ 31 (finding state’s use of gruesome slides during the
penalty phase appealed to the jury’s emotions and prejudiced the defendant).
“[B]latent prejudice may override even a strong case and require a new trial.” Id. at
¶ 32. See also State v. Ferricci, 8th Dist. Cuyahoga No. 110208, 2022-Ohio-1393(finding that the state’s repeated statements in closing arguments that its expert had
been previously retained by the defense unduly prejudiced the defendant). In this
case, the state’s repeated mentions of inmate deaths and use of witness testimony
and exhibits to bolster its case under a theory of supporting its dereliction-of-duty
charges was prejudicial to appellant.
{¶ 82} In sum, the discounted probative value of the state’s evidence was
substantially outweighed by the danger of unfair prejudice and the minimal limiting
instructions the trial court gave to the jury were insufficient to overcome the
admission of inadmissible evidence of inmate deaths. See Creech at id.{¶ 83} Even though we find that there was sufficient evidence that appellant
knowingly made a false statement to county council and made that false statement
with purpose to mislead the council, after a thorough review of all the evidence in
this case, this court concludes that there is at least a “reasonable possibility” that the
improper evidence admitted at trial contributed to appellant’s conviction. See
Morris at ¶ 28; see also Ferricci at ¶ 88.
C. Witness Testimony Regarding Appellant’s Attitude
{¶ 84} Finally, appellant contends that the trial court abused its discretion
when it allowed in the following testimony: (1) appellant hated a particular nurse
and was glad when he resigned; (2) Deputy General Inspector Woods’s testimony
that there was a “hostile work environment and a culture of disrespect” in the jail;
(3) appellant once said a “monkey could do the job” of a corrections officer; (4)
Sheriff Pinkney’s testimony that appellant once ignored a corrections officer’s
morning greeting.
{¶ 85} We have reviewed the challenged testimony and find that any error in
admitting it was harmless beyond a reasonable doubt.
{¶ 86} We therefore sustain the second assignment of error and reverse and
remand for a new trial.
D. Conclusion and Remaining Assignments of Error are Moot
{¶ 87} The trial court abused its discretion by allowing into evidence
substantial argument, witness testimony, and photographic evidence regarding
multiple deaths in the Cuyahoga County jail that occurred before, after, and while
appellant was the regional director of corrections. The admission of the evidence
was not harmless but was prejudicial to appellant and we conclude that there is a
reasonable possibility that the improper evidence contributed to his conviction;
therefore, the error was not harmless. Even if the remaining evidence established
appellant’s guilt beyond a reasonable doubt, the blatant prejudice to appellant
warrants a new trial.
{¶ 88} We therefore sustain the second assignment of error and reverse and
remand for a new trial.
{¶ 89} Based on our sustaining the second assignment of error, the third and
fourth assignments of error, which challenge the jury instructions, and the fifth
assignment of error, in which appellant challenges the consecutive nature of his
sentence, are moot. See App.R. 12(1)(a)(c).
{¶ 90} Judgment reversed; case remanded for a new trial.
{¶ 91} It is ordered that appellant recover from appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________________
CORNELIUS J. O’SULLIVAN, JR., JUDGE
EMANUELLA D. GROVES, J., CONCURS;
LISA B. FORBES, P.J., DISSENTS IN PART AND CONCURS IN PART (WITH
SEPARATE ATTACHED OPINION)
LISA B. FORBES, J., DISSENTING IN PART AND CONCURRING IN PART:
{¶ 92} I respectfully dissent from the majority opinion sustaining Mills’s
second assignment of error and would find that the trial court acted within its
discretion by admitting evidence of inmate deaths pursuant to Evid.R. 403(A).
{¶ 93} As noted by the majority, appellate courts review the admissibility of
evidence for an abuse of discretion. See State v. Bethel, 110 Ohio St.3d 416, 2006-
Ohio-4853, 854 N.E.2d 150, ¶ 171. The Ohio Supreme Court recently clarified the
abuse of discretion standard of review in Abdullah, 166 Ohio St.3d 427, 2021-Ohio-
3304, 187 N.E.3d 463, ¶ 33-41, explaining that, when a trial court abuses its
discretion, “the trial court’s attitude, in reaching its decision, was arbitrary,
unreasonable, or unconscionable.” (Citations omitted.)
{¶ 94} First, I would find that Evid.R. 404(B) is inapplicable to the case at
hand. The Ohio Supreme Court has stated that Evid.R. 404(B) “prohibits the use of
evidence related to other acts of the defendant to show his character or propensity
to commit crimes * * *.” (Emphasis added.) State v. Smith, 162 Ohio St.3d 353,
2020-Ohio-4441, 165 N.E.3d 1123, ¶ 3. The fact that inmates died is not other acts
evidence as envisioned by Evid.R. 404(B). See, e.g., State v. Heineman, 2016-Ohio-
3058, 65 N.E.3d 287, ¶ 76 (8th Dist.), quoting State v. Patton, 74 Ohio App.3d 224,
229, 598 N.E.2d 777 (3d Dist.1991) (defining the word “act” in the context of
Evid.R. 404(B) as ‘“[t]he process of doing something; action: * * * something that is
done or performed; deed * * *’”). In the case at hand, there is no evidence of an “act,”
let alone an “act” by Mills, that would implicate Evid.R. 404(B).
{¶ 95} Turning to Evid.R. 403(A), I would find that the evidence presented
to the jury relating to inmate deaths is relevant to whether Mills violated
R.C. 2921.44(C), which governs dereliction of duty. See also Evid.R. 401.
Furthermore, the probative value of this evidence outweighs “the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury.” Evid.R. 403(A).
{¶ 96} Notably, “[t]he exclusion of relevant evidence under Evid.R. 403(A)
requires more than mere prejudice, because anything adverse to a party’s case could
be deemed prejudicial to that party.” State v. Worley, 164 Ohio St.3d 589, 2021-
Ohio-2207, 174 N.E.3d 754, ¶ 125. “[O]nly evidence that is unfairly prejudicial is
excludable.” (Emphasis sic.) State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550,
820 N.E.2d 302, ¶ 23. ‘“Unfair prejudice,’ as used in Rule 403, does not mean the
damage to the [party’s] case that results from the legitimate probative force of the
evidence; rather, it refers to evidence which tends to suggest decision on an
improper basis.” U.S. v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir.1986). ‘“Unfair
prejudice is that quality of evidence which might result in an improper basis for a
jury decision.’” Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 743 N.E.2d
890 (2001), quoting Weissenberger’s Ohio Evidence, Section 403.3, 85-87 (2000).
Evidence may be unfairly prejudicial, ‘“if the evidence arouses the jury’s emotional
sympathies, invokes a sense of horror, or appeals to an instinct to punish * * *.”’ Id.{¶ 97} In its effort to prove Mills committed dereliction of duty under
R.C. 2921.44(C)(2) and (5),3 the state presented an abundance of evidence over an
11-day trial, including 28 witnesses and over 200 exhibits. A small part of this
evidence concerned inmate deaths. In particular, three inmates who died were
mentioned by name. One death occurred before Mills was appointed, one occurred
during his tenure, and one occurred soon after he was terminated.
{¶ 98} According to the state, evidence of the death that occurred prior to
Mills’s tenure was presented to demonstrate that the jail began its partnership with
MetroHealth for medical services to help prevent drug overdoses at the jail and
provide better medical care to the inmates. In my opinion, this evidence is relevant
background information to understand jail operations.
{¶ 99} According to the state, evidence of the deaths that occurred during
and immediately after Mills’s tenure was presented to demonstrate that Mills “was
derelict in his duty” under R.C. 2921.44(C). Specifically, the state argued that
inmates missed medical intake screenings as
a result of * * * Mills bringing in the Cleveland inmates and
overwhelming the intake process without increasing the staffing
medical and officers, corrections officers. And number two, the result
of backlog that resulted in people missing those [medical] intakes and
going right to the housing unit with the conditions that lead to their
deaths.
3Dereliction of duty is defined, in part, as the failure “to provide persons confined
in the detention facility with adequate food, clothing, bedding, shelter, and medical
attention” or the failure “to observe any lawful and reasonable regulation for the
management of the detention facility.” R.C. 2921.44(C)(2) and (5).
In my opinion, this evidence is relevant to whether Mills failed in his duties as the
director of regional corrections to provide jail inmates with, among other things,
adequate “medical attention.”
{¶ 100} Furthermore, I would find that this evidence is not so unfairly
prejudicial as to result in an improper basis for a jury decision. The state’s evidence
regarding inmate deaths, including comments made during opening statements, did
not result in an improper basis for a jury decision because of the overwhelming
evidence that Mills failed in his duties as the director of regional corrections. See
Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) (“In
some cases the properly admitted evidence of guilt is so overwhelming, and the
prejudicial effect of the [improperly admitted evidence] is so insignificant by
comparison, that it is clear beyond a reasonable doubt that the improper * * *
admission was harmless error.”).
{¶ 101} For example, as noted by the majority opinion, “the trial was replete
with testimony that inmates did not receive proper medical care due to the shortage
of medical staff, namely nurses.” Additionally, the state presented testimony that
the jail was “[d]irty, no running water, the inmates had to drink out of Igloo jugs. A
lot of them slept on the table, on the floor. It was not clean at all.” Testimony showed
that, according to jail standards, “for every 12 inmates there has to be one shower
and that shower has to be working * * *.” The state presented testimony regarding
the third floor of the jail, colloquially referred to as the “dungeon,” was where all of
the “fresh arrests” were placed, so that “all inmates would go immediately to * * * be
housed there.” However, the plumbing was not working on the third-floor housing
unit of the jail, so “there’s no availability to take a shower,” and the toilets would not
flush. Testimony showed that conditions on the third floor, were “horrific,” and
“[n]o one should have been down there.”
{¶ 102} A jail inspector for the state of Ohio testified to the following: when
he inspected the Cuyahoga County jail between 2015 and 2018, he worked with
Mills, who was the “jail administrator”; inmates were being isolated up to 20 hours
per day; nonviolent and violent offenders were not being properly separated; and
the jail was “exceeding [its] bureau recommended capacity by bunking additional
inmates in single occupancy cells, double occupancy [c]ells, triple and quadruple
occupancy cells.” The inspector further testified that the term “red zoning” was
developed by the Cuyahoga County jail, and he was not aware of any other jail in
Ohio using this draconian method. “Red zoning” refers to locking inmates in their
cells for extended periods of time because of understaffing. He further testified that,
although “red zoning” did not meet basic jail standards, Mills’s position was that the
jail was “in compliance with all related Ohio Revised Code requirements.” The
inspector testified that he did not agree with Mills’s position.
{¶ 103} Furthermore, the trial court was acutely aware of the possibility of
unfair prejudice that could result from the “inference” that the inmates died because
they were not medically screened. As a result, initially, the trial court limited the
state’s use of the evidence of inmate deaths to whether the medical screenings were
“missed because of the change in policies and procedures that [Mills] caused.” The
court informed the jury during the state’s opening statement that “Mills is not
charged with causing any specific death or injury to any specific inmate.” The court
instructed the jury that “whether * * * [the inmates] got screened or not they may or
may not have died anyway.”
{¶ 104} Approximately halfway through trial, the court clarified, out of the
jury’s presence, that it would not permit testimony that would raise an inference that
the inmate died because the inmate did not get medically screened under Mills’s
change in procedure. Before resuming witness testimony, the court reminded the
jury that “Mills [was] not charged with causing the death of any particular inmate.”
The court stated that Mills made policy changes regarding medical screenings, but
whether an inmate was medically screened or not, “[t]hat inmate may have died
anyway.” No additional evidence related to inmate deaths at the jail was admitted
at trial.
{¶ 105} Therefore, in my opinion, the admission of the inmate death
evidence, coupled with the court limiting its use and issuing limiting instructions to
the jury, was not unfairly prejudicial to Mills.
{¶ 106} In light of the overwhelming evidence against Mills and the
limitations put in place by the trial court, I would find the court did not abuse its
discretion when it permitted evidence related to inmate deaths. Therefore, I would
overrule Mills’s second assignment of error and proceed to analyze assignments of
error Nos. 3 through 5. Otherwise, I concur with the remainder of the majority’s
opinion.