State v. Radcliff

2021 Ohio 553

• Court: Ohio Court of Appeals
• Decided: February 26, 2021
• Docket: CT2020-0018
• Status: Published

Opinion

[Cite as State v. Radcliff, 2021-Ohio-553.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Earle E. Wise, J. -vs- : : CHRISTOPHER RADCLIFF : Case No. CT2020-0018 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2019-0637

JUDGMENT: Affirmed

DATE OF JUDGMENT: February 26, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellee

D. MICHAEL HADDOX JAMES A. ANZELMO Prosecuting Attorney Anzelmo Law Muskingum County, Ohio 446 Howland Drive Gahanna, Ohio 43230 By: TAYLOR P. BENNINGTON Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth St., P.O. Box 189 Zanesville, Ohio 43701 Muskingum County, Case No. CT2020-0018 2

Baldwin, J.

{¶1} Defendant-appellant Christopher Radcliff appeals his conviction from the

Muskingum County Court of Common Pleas for escape. Plaintiff-appellee is the State of

Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On October 31, 2019, appellant was indicted on one count of escape in

violation of R.C. 2921.34(A)(3), a felony of the fifth degree. At his arraignment on

November 20, 2019, appellant entered a plea of not guilty.

{¶3} Subsequently, a jury trial commenced on February 20, 2020. Testimony

was adduced at trial that appellant was on post release control for three drug possession

offenses, one of which was a felony of the fourth degree. One post release control order

stemmed from a drug offense in the Common Pleas Court in Washington County, Ohio,

another from a drug offense in the Common Pleas Court in Monroe County, Ohio and the

third from a drug offense in the Common Pleas Court in Perry County, Ohio.

{¶4} After his release from prison, appellant lived with his mother in New

Concord, Ohio, which is in Muskingum County.

{¶5} Eric Gaumer testified that, as part of his duties, he supervised appellant.

Appellant was released from incarceration on February 19, 2019 and properly enrolled

with Gaumer that same day in Muskingum County which is where his approved residence

was located. Appellant, at a meeting with Officer Gaumer on February 25, 2019,

reviewed, signed and dated the Adult Parole Authority’s Conditions of Supervision form. Muskingum County, Case No. CT2020-0018 3

{¶6} After this initial meeting with Gaumer, appellant failed to report. Eventually,

appellant was picked up and was instructed on July 9, 2019 that he had to report to his

Parole Officer every month.

{¶7} On July 9, 2019, appellant indicated to his parole officer that he had moved

to an address in New Matamoras in Washington County, Ohio. Because the move was

not approved by the Parole Authority, appellant was required to continue seeing Officer

Gaumer in Muskingum County.

{¶8} On July 30, 2019, appellant was declared whereabouts unknown, violator

at large through the Adult Parole Authority. He was finally found in September of 2019

and arrested in Washington County, Ohio . While in jail, Washington County Adult Parole

Officer Joshua Bailey met with appellant and served appellant with a sanction from the

Adult Parole Authority. Appellant was served with the sanction on September 12, 2019.

According to Bailey, appellant was sanctioned for making his whereabouts to the Adult

Parole Authority unknown and for possessing drug paraphernalia. He testified that

appellant was to report to Parole Officer Eric Gaumer at the Zanesville Adult Parole

Authority on September 16, 2019 and to enter and complete substance abuse

programming and to follow all of Gaumer’s recommendations. Appellant was also

required to provide an updated address and phone number. Appellant did so. Bailey

testified that appellant was served at the Washington County Jail and signed the sanction

in his presence. Appellant was given a copy of the paper requiring him to report to Parole

Officer Gaumer on September 16, 2019. Appellant was then released from the jail.

{¶9} However, appellant did not show up for his appointment with Gaumer on

September 16, 2019 as directed. Gaumer testified that appellant had left him a message Muskingum County, Case No. CT2020-0018 4

indicating that he was stranded in Marietta and trying to get a ride to Zanesville. Gaumer

waited until 6:00 p.m. that night but appellant never showed. Appellant had had his mother

call Gaumer later the same day. Appellant did not show up on September 17th or 18th.

Gaumer testified that the day of the trial was the first day that he had seen appellant since

July 9, 2019.

{¶10} At the conclusion of the evidence and the end of deliberations, the jury

found appellant guilty of escape. Appellant was sentenced to twelve months in prison.

{¶11} Appellant now appeals, raising the following assignments of error on

appeal:

{¶12} “I. THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT IT

COULD CONSIDER WHETHER RADCLIFF FLED FROM LAW ENFORCEMENT AND,

IF SO, THAT FLIGHT EVINCES A CONSCIOUSNESS OF GUILT.”

{¶13} “II. RADCLIFF RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN

VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

AND SECTION 10, ARTICLE 1 OF THE OHIO CONSTITUTION.”

{¶14} “III. RADCLIFF’S CONVICTION IS BASED ON INSUFFICIENT

EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTIONS 10 & 16, ARTICLE 1 OF THE OHIO CONSTITUTION.”

{¶15} “IV. RADCLIFF’S CONVICTION IS AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTIONS 10 & 16, ARTICLE 1 OF THE OHIO CONSTITUTION.” Muskingum County, Case No. CT2020-0018 5

I

{¶16} Appellant, in his first assignment of error, argues that the trial court

erroneously provided a flight instruction.

{¶17} In the case sub judice, the trial court instructed the jury that it could consider

whether appellant fled from law enforcement and, if so, that the flight evinces a

consciousness of guilt. Appellant argues that there was no evidence presented at trial

that he fled from law enforcement.

{¶18} However, a reviewing court may not reverse a conviction in a criminal case

due to jury instructions unless it is clear the jury instructions constituted prejudicial

error. State v. McKibbon, 1st Dist. Hamilton No. C–010145, 2002–Ohio–2041, 4,

citing State v. Adams, 62 Ohio St.2d 151, 154, 404 N.E.2d 144 (1980). In order to

determine whether an erroneous jury instruction was prejudicial, a reviewing court must

examine the jury instructions as a whole. State v. Van Gundy, 64 Ohio St.3d 230, 233–

234, 594 N.E.2d 604 (1992).

{¶19} This Court, in State v. Henson, 5th District Fairfield No. 2019 CA 00017,

2020-Ohio-262, paragraph 29 found as follows:

We find the flight instruction in the instant case did not constitute

prejudicial error. The court did not instruct the jury flight was a fact, but

rather allowed the jury to determine for itself whether Appellant did in fact

flee, and if so, whether flight was motivated by consciousness of guilt. The

jury was instructed to disregard evidence of flight if it found flight did not

occur or was not motivated by consciousness of guilt. Further, the jury was

instructed even if it found Appellant fled and his flight was motivated by guilt, Muskingum County, Case No. CT2020-0018 6

they were to determine what weight, if any, to give to the evidence. In light

of the other evidence of guilt as discussed in assignment of error one above,

we find the jury instruction did not rise to the level of prejudicial error.

{¶20} In the case sub judice, the trial court did not instruct the jury that flight was

a fact, but allowed the jury to determine whether or not flight was motivated by

consciousness of guilt and the jury could disregard it as being evidence towards anything

at all.

{¶21} Furthermore, at trial, there was evidence that appellant failed to report to

his Adult Parole Authority Officer numerous times. Thus, there was evidence supporting

the instruction.

{¶22} Appellant’s first assignment of error is, therefore, overruled.

II

{¶23} Appellant, in his second assignment of error, contends that he received

ineffective assistance of trial counsel when trial counsel failed to request that the jury be

instructed that evidence of appellant’s prior convictions cannot be used to conclude that

appellant has a propensity to commit crimes.

{¶24} Our standard of review for ineffective assistance claims is set forth

in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ohio

adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989). These cases require a two-pronged analysis in reviewing a claim

for ineffective assistance of counsel. First, we must determine whether counsel's

assistance was ineffective; i.e., whether counsel's performance fell below an objective

standard of reasonable representation and was violative of any of his or her essential Muskingum County, Case No. CT2020-0018 7

duties to the client. If we find ineffective assistance of counsel, we must then determine

whether or not the defense was actually prejudiced by counsel's ineffectiveness such that

the reliability of the outcome of the trial is suspect. This requires a showing there is a

reasonable probability that but for counsel's unprofessional error, the outcome of the trial

would have been different. Id.

{¶25} We find appellant was not prejudiced by the lack of a limiting instruction.

Based upon the evidence presented at trial, and as discussed in appellant’s third and

fourth assignments of error below, there is not a reasonable probability that but for

counsel's error, the outcome of the trial would have been different. Moreover, it is within

the realm of reasonable trial strategy not to request a limiting instruction so as to avoid

drawing further attention to appellant’s prior convictions. State v. Kinney, 4th Dist. Ross

App. No. 07CA2996, 2008-Ohio-4612 ¶ 20, citing State v. Jovanovic, 8th Dist. Cuyahoga

App. No. 89180, 2007-Ohio-6196 ¶ 30.

{¶26} Appellant’s second assignment of error is, therefore, overruled.

III, IV

{¶27} Appellant, in his third assignment of error, argues that his conviction for

escape is based on insufficient evidence. In his fourth assignment of error, he contends

that his conviction is against the manifest weight of the evidence.

{¶28} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). “The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable Muskingum County, Case No. CT2020-0018 8

doubt.” Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

{¶29} On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses and determine “whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered.” State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983). See also State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-

52, 678 N.E.2d 541. The granting of a new trial “should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.” Martin at

175.

{¶30} Appellant was convicted of escape in violation of R.C. 2921.34(A)(3). Such

section states as follows: (3) No person, knowing the person is under supervised release

detention or being reckless in that regard, shall purposely break or attempt to break the

supervised release detention or purposely fail to return to the supervised release

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.

{¶31} Appellant argues that venue was not proper in Muskingum County. He

argues that his conduct, giving rise to the escape conviction, did not occur in Muskingum

County. Appellant argues that appellee failed to provide any evidence that Muskingum

County is the county in which originated the sentence for which appellant was placed on

post-release control. He further maintains that he had moved to Washington County and

had given that information to the Adult Parole Authority. Muskingum County, Case No. CT2020-0018 9

{¶32} Venue is proper if an offense or any element of the offense was committed

in the court's jurisdiction. R.C. 2901.12(G). It is a fact that must be proved in all criminal

prosecutions, unless it is waived, although it is not a material element of any

offense. State v. Draggo , 65 Ohio St.2d 88, 90, 418 N.E.2d 1343 (1981). The standard

of proof is beyond a reasonable doubt, but “venue need not be proved in express terms

so long as it is established by all the facts and circumstances in the case.” State v.

Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983), citing State v. Dickerson , 77

Ohio St. 34, *2 N.E. 969 (1907), paragraph one of the syllabus.

{¶33} In State v. Glover, 8th Dist. Cuyahoga No. 89059, 2007-Ohio-5727, the

court found that venue was proper in Cuyahoga County because the basis for the escape

charge was the appellant’s failure to report to his parole officer at the officer’s office, which

was located I Cuyahoga County.

{¶34} In this case, appellant’s approved Adult Parole Authority approved

residential address was in Muskingum County, he enrolled in post-release control in

Muskingum County and he was to report to Officer Gaumer in Muskingum Count, but

failed to do so. Appellant was never approved to live in Washington County by the Adult

Parole Authority. His offense of escape was committed in Muskingum County and,

therefore, venue was proper in Muskingum County.

{¶35} We find that, based on the facts as set forth above, viewing the evidence in

a light most favorable to the prosecution, that any rational trier of fact could have found

that appellant knowing, that he was under supervised release detention or being reckless

in that regard, purposely broke or attempted to break the supervised release detention

or purposely failed to return to the supervised release detention, either following Muskingum County, Case No. CT2020-0018 10

temporary leave granted for a specific purpose or limited period, or at the time required

when serving a sentence in intermittent confinement. We further find that the jury did not

lose its way in convicting appellant. There was testimony that appellant, who was on

post-release control, was served with a sanction on September 12, 2019 while in the

Washington County Jail and was released with the direction to report to Officer Gaumer,

his parole officer, on September 16, 2019, but failed to do so. Appellant called Gaumer

after his scheduled appointment and said that he was stranded and trying to find a ride.

However, appellant never showed up for his appointment or contacted Officer Gaumer

again or left a note for Officer Gaumer at his office. At trial, Officer Gaumer testified that

the date of the trial was the first day that he had seen appellant since July 9, 2019. He

testified that he went to the Adult Parole Authority’s approved address for appellant, which

was in Muskingum County, and that no one answered. While he left a business card on

the door, he never heard from appellant. Moreover, Officer Gaumer testified that he had

reason to believe that appellant was not residing at the Washington County address

because no contact could be made with appellant at such address.

{¶36} Appellant’s third and fourth assignments of error are, therefore, overruled. Muskingum County, Case No. CT2020-0018 11

{¶37} Accordingly, the judgment of the Muskingum County Court of Common

Pleas is affirmed.

By: Baldwin, P.J.

Wise, John, J. and

Wise, Earle, J. concur.