[Cite as State v. Taylor, 2022-Ohio-1681.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. CT2021-0035 DAVID TAYLOR
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2020-0638
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 18, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH JAMES A. ANZELMO PROSECUTING ATTORNEY ANZELMO LAW TAYLOR P. BENNINGTON 446 Howland Drive ASSISTANT PROSECUTOR Gahanna, Ohio 43230 27 North Fifth Street, P.O. Box 189 Zanesville, Ohio 43701 Muskingum County, Case No. CT2021-0035 2
Wise, J.
{¶1} Defendant-Appellant David Taylor appeals his conviction entered in the
Muskingum County Court of Common Pleas on one count of Escape, following a jury trial.
{¶2} Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} The relevant facts and procedural history are as follows:
{¶4} Appellant David Taylor was under supervision with the Department of
Rehabilitation and Corrections from a prior criminal conviction. On August 26, 2020,
Appellant's supervision was transferred to Muskingum County from Franklin County.
{¶5} Appellant was to report to Doug Nutter with the Adult Parole Authority.
Appellant's initial visit was scheduled for August 26, 2020. Appellant met with Officer
Nutter and was informed he would need to meet the second Tuesday of each month.
{¶6} Appellant was next scheduled to meet with Officer Nutter on September 8,
2020. At that appointment, Appellant stated he had no questions as to his reporting
requirements. Mr. Nutter also emphasized to Appellant that if he failed to report, he would
likely be charged with escape. (T. at 146).
{¶7} Appellant's next date to report to Officer Nutter was on October 13, 2020.
On said date, Appellant failed to show or contact Mr. Nutter. Mr. Nutter attempted to
make contact by phone but was unsuccessful. Id. at 148.
{¶8} On November 6, 2020, Officer Nutter went to Appellant's residence in an
attempt to make contact, but no one answered the door. Mr. Nutter then declared
Appellant a Violator At Large, due to the fact that Appellant had failed to appear and his
whereabouts were unknown. Id. at 148. Muskingum County, Case No. CT2021-0035 3
{¶9} On November 10, 2020, Officer Nutter made contact with Appellant by
telephone. Mr. Nutter informed Appellant he had now missed two office visits. The phone
call was then disconnected. When Mr. Nutter attempted to call back, the call went straight
to Appellant's voicemail. Appellant never attempted to contact Mr. Nutter after this.
{¶10} On November 23, 2020, Officer Nutter was again able to make contact with
Appellant by phone. At that time, Mr. Nutter offered Appellant one last chance to meet
with him before getting a warrant. Mr. Nutter ordered Appellant to report the next day,
November 24, 2020.
{¶11} On November 24, 2020, Appellant failed to report.
{¶12} During the months that Appellant was failing to report, he did not provide a
reason or excuse, nor did he request to reschedule.
{¶13} Eventually, Officer Nutter made contact with Appellant and ordered him to
report on December 8, 2020, so that he could be taken into custody. Appellant did report
and was arrested.
{¶14} On December 16, 2020, Appellant was indicted on one count of Escape, a
felony of the fifth degree, in violation of R.C. §2921.34(A)(3).
{¶15} On January 5, 2021, Appellant entered a plea of not guilty.
{¶16} On May 27, 2021, a jury trial commenced in this matter.
{¶17} At trial, the jury heard testimony from Officer Nutter which included
statements by him that he learned from Appellant's previous parole officer that Appellant
had a history of missing visits. (T. at 194-95). Officer Nutter testified that he received that
information from a report compiled by the previous parole officer. (T. at 194-95).
Appellant’s trial counsel objected to the testimony as hearsay. The trial court overruled Muskingum County, Case No. CT2021-0035 4
the objection because Officer Nutter obtained the information in a report from the previous
parole officer. (T. at 194-95).
{¶18} Officer Nutter also testified to other instances in which Appellant missed
visits with him but was not charged for missing the visits. (T. at 146, 176). Additionally,
Officer Nutter testified that Appellant had previously been convicted of escape due to
previously missing visits. (T. at 196). Appellant's trial counsel objected to that testimony
and moved for a mistrial. (T. at 196). The trial court denied the motion for mistrial, but
instructed the jury to disregard the testimony about the prior escape conviction. (Tr. at
196-198).
{¶19} The jury found Appellant guilty of the sole count in the indictment.
{¶20} On June 9, 2021, the trial court sentenced Appellant to a prison term of 12
months.
{¶21} Appellant now appeals, raising the following assignments of error for review:
ASSIGNMENTS OF ERROR
{¶22} “I. THE TRIAL COURT ERRED BY DENYING TAYLOR'S MOTION FOR A
MISTRIAL IN VIOLATION OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS AS
GUARANTEED UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION.
{¶23} “II. THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE PRIOR
BAD ACTS OF TAYLOR, IN VIOLATION OF HIS DUE PROCESS RIGHTS UNDER THE
FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION. Muskingum County, Case No. CT2021-0035 5
{¶24} “III. THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE
INADMISSIBLE OUT OF COURT STATEMENTS, IN VIOLATION OF TAYLOR'S
RIGHTS TO A FAIR TRIAL, AND TO DUE PROCESS GUARANTEED BY THE FIFTH,
SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
{¶25} “IV. TAYLOR'S CONVICTION IS BASED ON INSUFFICIENT EVIDENCE,
IN VIOLATION OF THE ONE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 & 16,
ARTICLE I OF THE OHIO CONSTITUTION.
{¶26} “V. TAYLOR'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 1OF THE OHIO CONSTITUTION.”
I.
{¶27} In his first assignment of error, Appellant argues that the trial court erred in
denying his motion for a mistrial. We disagree.
{¶28} The grant or denial of a mistrial rests within the sound discretion of the trial
court. State v. Sage (1987), 31 Ohio St.3d 173, 182. Moreover, mistrials need be declared
only when the ends of justice so require and a fair trial is no longer possible. State v.
Franklin (1991), 62 Ohio St.3d 118. “An appellate court will not disturb the exercise of that
discretion absent a showing that the accused has suffered material prejudice.” Sage,
supra at 182. Muskingum County, Case No. CT2021-0035 6
{¶29} Here, Officer Nutter, during his re-direct examination, testified that Appellant
had been found guilty of escape with his previous parole officer. Defense counsel
objected and moved for a mistrial. Outside the presence of the jury, the trial court
admonished Officer Nutter and instructed him not to mention the prior offense again. The
trial court then gave a curative instruction to the jury to disregard Nutter's comment.
{¶30} It is well-established that juries are presumed to follow and obey the limiting
instructions given them by the trial court. State v. Davis, 5th Dist. Richland No. 14 CA 34,
2015-Ohio-889, 31 N.E.3d 1204, ¶54, citing State v. DeMastry, 155 Ohio App.3d 110,
127, 799 N.E.2d 229, 2003-Ohio-5588, ¶84; State v. Franklin (1991), 62 Ohio St.3d 118,
127, 580 N.E.2d 1 (1991); Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 122
L.Ed.2d 317 (1993). “A presumption always exists that the jury has followed the
instructions given to it by the trial court.” Pang v. Minch, 53 Ohio St.3d 186, 187, 559
N.E.2d 1313 (1990), at paragraph four of the syllabus, rehearing denied, 54 Ohio St.3d
716, 562 N.E.2d 163. A curative instruction is presumed to be an effective remedy for the
introduction of improper statements during the course of a trial. See State v. Zeurn, 32
Ohio St.3d 56, 61, 512 N.E.2d 585 (1987). Moreover, a jury is presumed to follow the
court's curative instructions concerning improper comments. See State v. Ahmed, 103
Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶93 (stating that the jury can be
presumed to have followed the court's instructions to disregard testimony).
{¶31} Upon review of the entire record, we find no “material prejudice”. Officer
Nutter’s comment was fleeting and was unsolicited by the State. Considering the
comment in light of the overwhelming evidence adduced at trial, we conclude Appellant
did not suffer any material prejudice; therefore, the trial court did not abuse its discretion Muskingum County, Case No. CT2021-0035 7
in denying his motion for a mistrial. See, State v. Draper, 5th Dist. Knox No. 05-CA-17,
2006-Ohio-2396; State v. Cobbins, Cuyahoga App. No. 82510, 2004-Ohio-3736.
{¶32} Appellant’s first assignment of error is overruled.
II.
{¶33} In his second assignment of error, Appellant argues that the trial court erred
in admitting prior bad acts into evidence. We disagree.
{¶34} Appellant argues that the trial court erred in allowing testimony that
Appellant had also missed appointments with a previous parole officer and that Appellant
had also missed appointments with Officer Nutter other than the October 13, 2020, visit
as charged in this case.
{¶35} The State argues that evidence of Appellant’s history of missing visits was
not introduced to prove Appellant's propensity of failing to show, but rather that it was
offered to explain Officer Nutter’s treatment of Appellee.
{¶36} Appellant's trial counsel did not object to the introduction of said evidence.
By failing to object, Appellant has forfeited all but plain error. For an error to be a “plain
error” under Crim.R. 52(B), it must satisfy three prongs: (1) there must be an error,
meaning a deviation from a legal rule, (2) the error must be “plain,” meaning an “obvious”
defect in the trial proceedings, and (3) the error must have affected “substantial rights,”
meaning the error must have affected the outcome of the trial. Shine-Johnson at 102,
quoting State v. Urbina, 10th Dist. No. 15AP-978, 72 N.E.3d 105, 2016-Ohio-7009, ¶43,
citing State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).
{¶37} Upon review of the record, we find that Officer Nutter testified that Appellant was
given numerous opportunities to report and still failed to do so. Even without the testimony of
Appellant's history of missing appointments, we find there was sufficient evidence to find Appellant Muskingum County, Case No. CT2021-0035 8
guilty of escape. We therefore find the introduction of such evidence did not rise to the level of
plain error as it did not affect the outcome of the trial.
{¶38} Appellant’s second assignment of error is overruled
III.
{¶39} In his third assignment of error, Appellant argues the trial court erred in
allowing hearsay statements into evidence. We agree but find the error to be harmless.
{¶40} Appellant argues the trial court erred in allowing Officer Nutter to testify that
he learned from Appellant's previous parole officer that Appellant had a history of missing
visits. Appellant claims the information from the report is inadmissible pursuant to Evid.R.
803(8).
{¶41} The State argues the testimony was not hearsay because it was not offered
for the truth of the matter asserted, but rather to explain that Officer Nutter’s treatment of
Appellant was based on his knowledge of Appellant's history.
{¶42} The trial court found Officer Nutter's testimony was based on a report he
read, and that the testimony was given on re-direct in response to cross-examination as
to how and why Officer Nutter did things. (T. at 195).
{¶43} Upon review, we find that the statements by the prior parole officer were
hearsay. However, we find the error in this case to be harmless because other evidence
was presented as to Appellant having missed his appointments with Officer Nutter in
support of the charge of Escape in this case. Harmless error is described as “[a]ny error,
defect, irregularity, or variance which does not affect substantial rights shall be
disregarded.” Crim.R. 52(A). Overcoming harmless error requires a showing of undue
prejudice or a violation of a substantial right. Muskingum County, Case No. CT2021-0035 9
{¶44} Based on the foregoing analysis, we find that allowing Officer Nutter to
testify as to what he was told by Appellant’s prior parole officer was error, but it was
harmless error.
{¶45} Appellant's third assignment of error is overruled.
IV., V.
{¶46} In his fourth and fifth assignments of error, Appellant argues his conviction
is against the manifest weight and sufficiency of the evidence. We disagree.
{¶47} Manifest “weight of the evidence and sufficiency of the evidence are clearly
different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389 (1997). Accordingly,
we address each legal concept individually.
{¶48} “An appellate court's function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991),
paragraph two of the syllabus, superseded by state constitutional amendment on other
grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly, “[t]he 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 doubt.” Id. “In deciding if the evidence was sufficient, we neither resolve
evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved
for the trier of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571,
2013-Ohio-4775, ¶33, citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267,
¶25 (1st Dist.). See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, Muskingum County, Case No. CT2021-0035 10
¶19 (“Sufficiency of the evidence is a test of adequacy rather than credibility or weight of
the evidence.”), citing Thompkins at 386.
{¶49} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must 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 [trier of fact]
clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.’ ” Thompkins at 387, quoting State v. Martin,
20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court must, however, allow the trier
of fact appropriate discretion on matters relating to the weight of the evidence and the
credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When
applying the manifest-weight standard “[o]nly in exceptional cases, where the evidence
‘weighs heavily against the conviction,’ should an appellate court overturn the trial court's
judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State
v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
{¶50} Appellant herein was convicted of escape in violation of R.C.
§2921.34(A)(3), which provides, “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 * * *.”
{¶51} R.C. §2921.34(D) defines “supervised release detention” as
[D]etention that is supervision of a person by an employee of the
department of rehabilitation and correction while the person is on any type
of release from a state correctional institution, other than transitional control Muskingum County, Case No. CT2021-0035 11
under section 2967.26 of the Revised Code or placement in a community-
based correctional facility by the parole board under section 2967.28 of the
Revised Code.
{¶52} Specifically, Appellant argues that his conviction is against the manifest
weight and sufficiency of the evidence because the State failed to prove that he
“purposely” broke supervised detention.
{¶53} “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).
{¶54} “ ‘ “The purpose with which a person does an act is determined from the
manner in which it is done, the means used, and all other facts and circumstances in
evidence.” ’ ” State v. Swaney, 3d Dist. Auglaize No. 2-18-20, 2019-Ohio-3141, ¶11,
quoting State v. Puterbaugh, 142 Ohio App.3d 185, 189 (4th Dist.2001), quoting State v.
Hardin, 16 Ohio App.3d 243, 245 (10th Dist.1984). “Purpose can be established by
circumstantial evidence.” State v. Kennedy, 3d Dist. Logan No. 8-18-01, 2018-Ohio-4172,
¶ 25, citing State v. Nicely, 39 Ohio St.3d 147 (1988).
{¶55} Appellant argues that the State failed to provide sufficient evidence to
support his escape conviction. Appellant does not contest that he was under supervised
release detention. Rather, he argues that he did not “purposely” break the supervised
release detention. Appellant argues he was “unable to meet with his parole officer
because of employment” and “was not purposefully skipping the meeting”. (Appellant’s
brief at 18). Muskingum County, Case No. CT2021-0035 12
{¶56} Upon our review of the record, we conclude that Appellant's escape
conviction is supported by sufficient evidence. First, the State presented sufficient
evidence to support a finding that Appellant broke his supervised release. The State
presented unrefuted testimony that Appellant failed to report in from October 13, 2020 to
his subsequent arrest on December 8, 2020. The State presented evidence that Appellant
failed to follow the orders given to him by his supervising officer, despite being required
to do so under the conditions of his supervision. Officer Nutter stated that he emphasized
to Appellant that if he failed to report, he would likely be charged with escape. Officer
Nutter offered undisputed testimony that Appellant failed to report in to his office despite
his repeated orders to do so and Officer Nutter’s repeated attempts to make contact with
him, which included a visit to Appellant's residence.
{¶57} Although the State has the burden of proving each of the elements of the
offense, the State is not required to provide a reason why Appellant failed to obey Officer
Nutter's instructions, as such is not an element of the offense. Intent to commit a criminal
offense may be inferred from the surrounding facts and circumstances and can be
established through circumstantial evidence. See Swaney, 2019-Ohio-3141, at ¶11;
Kennedy, 2018-Ohio-4172, at ¶25. “ ‘The intent of an accused person dwells in his mind.
Not being ascertainable by the exercise of any or all of the senses, it can never be proved
by the direct testimony of a third person, and it need not be. It must be gathered from the
surrounding facts and circumstances under proper instructions from the court.’ ” In re
Washington, 81 Ohio St.3d 337, 340 (1998), quoting State v. Huffman, 131 Ohio St. 27
(1936), paragraph four of the syllabus. Thus, the fact that the State did not provide direct Muskingum County, Case No. CT2021-0035 13
testimony regarding Appellant's intent does not mean that the State failed to meet its
burden of proof.
{¶58} Here, the record establishes that Appellant was aware of his Conditions of
Supervision, which included the requirement that he follow all orders given to him by his
supervising officer. Appellant failed to follow Officer Nutter's instructions and report as
directed. These facts could allow the jury to infer that by failing to follow Officer Nutter's
instructions, Appellant was acting with the intention to break his supervised release.
Viewing the evidence in a light most favorable to the State, a rational trier of fact could
have found that the State proved the purpose element of escape. See State v. Smith, 8th
Dist. Cuyahoga No. 88002, 2007-Ohio-717, ¶ 3, 19 (affirming an escape conviction where
the parole board declared the defendant “whereabouts unknown”). Accordingly, we
conclude that Appellant's escape conviction is supported by sufficient evidence.
{¶59} Appellant's argument that his conviction is against the manifest weight of
the evidence is based on the same argument as his sufficiency of the evidence claim,
that is that the State failed to prove that he purposely broke supervised release detention.
{¶60} Having weighed the evidence and all reasonable inferences, and
considering the credibility of the witnesses, we conclude that the jury did not clearly lose
its way and create such a manifest miscarriage of justice that Appellant's conviction must
be reversed. Accordingly, Appellant's conviction is not against the manifest weight of the
evidence. Muskingum County, Case No. CT2021-0035 14
{¶61} Appellant’s fourth and fifth assignments of error are overruled.
{¶62} Accordingly, the judgment of the Court of Common Pleas, Muskingum County,
Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Hoffman, J., concur.
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