State v. Vasquez

2024 Ohio 860, 237 N.E.3d 885

• Court: Ohio Court of Appeals
• Decided: March 8, 2024
• Docket: L-22-1192
• Status: Published

Opinion

[Cite as State v. Vasquez, 2024-Ohio-860.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-22-1192

Appellee Trial Court No. CR0201801191

v.

Devaun Vasquez DECISION AND JUDGMENT

Appellant Decided: March 8, 2024

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Lorrie J. Rendle, Assistant Prosecuting Attorney, for appellee.

Timothy Young, Ohio State Public Defender, and Stephen P. Hardwick, Assistant State Public Defender, for appellant.

MAYLE, J.

{¶ 1} Appellant, Devaun Vasquez, appeals the July 12, 2018 judgment of the

Lucas County Court of Common Pleas sentencing him following his conviction of one

count of rape. For the following reasons, we affirm. I. Background and Facts

{¶ 2} Vasquez was indicted on one count of rape in violation of R.C.

2907.02(A)(1)(c), a first-degree felony.

{¶ 3} Vasquez’s case was tried to a jury beginning on June 19, 2018. As relevant

to the issue in this appeal, the state presented the testimony of A.L., the victim; Jessica

Ramsey, A.L.’s cousin; and detective Mark Nelson of the Toledo Police Department.

The sexual assault nurse examiner (“SANE”) who examined A.L., the police officer who

showed her a photo array, the sheriff’s deputy who downloaded Vasquez’s jail phone

calls, and two experts from the Ohio Bureau of Criminal Investigations (“BCI”) also

testified. Vasquez presented the testimony of Marcus Sandoval, his half-brother; Dylan

Reed, Sandoval’s friend and roommate; and Juan Roman, Sandoval’s and A.L.’s friend.

{¶ 4} The charge against Vasquez stemmed from events that happened in the early

morning hours of September 10, 2017, following a night out at a bar. Each of the

witnesses presented a slightly different version of events.

A. The state’s case

1. A.L.’s testimony

{¶ 5} A.L. testified that she and some friends went out to a bar in downtown

Toledo the night of September 9 because it was her last weekend in town before she left

for boot camp. She remembered that she was with Roman, whom she had known since

high school, and a friend whose name she forgot, but did not say if anyone else was in the

2. group. The group got to the bar between 11:00 and 11:30 p.m. and left around 2:00 or

2:30 a.m. While they were there, A.L. had three or four mixed drinks.

{¶ 6} When A.L. left the bar, she went to an apartment on Graham Street with

some friends. She described the layout of the very small apartment using photographs

and a walk-through video. The front door opens into the living room. The kitchen is to

the immediate right of the front door, and had a sheet covering the doorway. A very

short hallway leads from the living room to the bathroom, which is at the far end of the

apartment, directly opposite the front door. The apartment has two bedrooms, one to the

right of the bathroom and one to the left. Although A.L. pointed out the bedroom

“[w]here it happened” as she was watching the video, it is unclear from the record if she

was referring to the bedroom to the right or left of the bathroom.

{¶ 7} That night, A.L. expected other friends to come to the apartment, but no one

else showed up. Despite that, A.L. stayed at the house and fell asleep in the bedroom

between 3:30 and 4:30 a.m.

{¶ 8} Around 5:30 a.m., A.L. was woken up by “some guy on top of [her] * * *

[h]aving sex with [her].” She did not know the man assaulting her. During the assault,

the man kept repeating “we’ve done this hundreds of times.” When A.L. shined the light

from her phone on the man’s face, she realized that she did not know him and pushed him

off of her. She stood up on the bed, and while the man was pulling up his pants, she ran

out of the room. The man also kept repeating “you don’t talk to me in my house like that,

3. this is my house.” A.L. did not see the man who assaulted her after she left the bedroom.

However, she said that she heard the man leave the house.

{¶ 9} When she left the bedroom, A.L. was “freaking out,” “crying,” and “didn’t

know what was going on.” She yelled for Roman, who walked out of the kitchen with

Reed. She did not tell either man what happened. After that, she called Ramsey. She

left the apartment about 30 minutes after she was assaulted. As she was leaving, she

looked in the living room and saw Sandoval sleeping on the floor.

{¶ 10} Ramsey took A.L. to Ramsey’s house. A.L. was reluctant to go to the

hospital because she was leaving for boot camp nine days later and knew that she would

not be able to go to boot camp if she went to the hospital. However, she eventually

relented and went to the hospital at 6:00 or 6:30 a.m. At the hospital, a SANE conducted

a sexual-assault examination. During the exam, the SANE had to bring Ramsey into the

room to help A.L. calm down because she was “crying, [and] didn’t want anyone to touch

[her] * * *.” She suffered low back and vaginal pain because of the assault.

{¶ 11} At the time of the assault, A.L. did not know her assailant’s name, and had

not met him before that night. She did, however, know that his nickname was “Dada”

and found a Facebook profile with the name “Dada Blood” and a picture that matched her

assailant. A.L. told Nelson about the Facebook page, and the SANE testified that A.L.

identified her assailant by his Facebook name, “Dada Blood.” Later, A.L. identified

Vasquez in a photo array, and was sure that Vasquez was the man who raped her.

4. {¶ 12} On cross-examination, A.L. clarified that she went out with Roman and his

friends that night. She knew Reed, but did not know the others in their group. She also

explained that Roman drove her to the bar; around 11:00 p.m., she drove to an address on

Graham Street that Roman provided, left her car there, and rode to the bar with Roman.

Although A.L. said there was “usually” a line to get into that bar, she did not say whether

there was a line that night.

{¶ 13} A.L. admitted that, at 19 years old, she was too young to be in the bar and

too young to drink. She asked Roman to get her drinks, which he did. She described

herself as “intoxicated with alcohol” but not “drunk” after three or four mixed drinks.

{¶ 14} The first time she went into the Graham Street apartment was when they

got back from the bar. She thought that Roman and Sandoval lived there, but was unsure

if anyone else did. A.L. said that she, Roman, Reed, their friend Migel, Sandoval,

Vasquez, and three women were at the apartment. People stayed for an hour or two, and

A.L. went into a bedroom and fell asleep around the time people started leaving. Roman,

Reed, Migel, and Sandoval were still at the apartment when she went to the bedroom.

After she was assaulted, A.L. learned from Roman that he and Reed left to take Migel

home, and returned to the apartment just before she came out of the bedroom.

{¶ 15} A.L. went to sleep wearing a t-shirt Roman gave her and the jeans she wore

out that evening. When she woke, she was not wearing pants, so she assumed that the

assailant removed them. She did not wake up until Vasquez’s penis penetrated her

5. vagina. She denied telling the SANE and police that she was “unsure” if penetration

occurred. Although A.L.’s car was parked at the apartment, she “wasn’t in a state of

mind to drive [her]self * * *” after the assault, which is why she called Ramsey.

Ramsey’s boyfriend drove A.L.’s car back to Ramsey’s house.

2. Ramsey’s testimony

{¶ 16} Sometime between 4:00 a.m. and 6:00 a.m. on September 10, 2017,

Ramsey received a phone call from A.L., who was crying to the point that Ramsey could

not understand what she was saying. She told Ramsey that she had been raped. Ramsey

also spoke to Roman during the call.

{¶ 17} Ramsey got to the apartment on Graham Street about five minutes after

A.L. called, and was there for about ten minutes. Ramsey knew that Roman and

Sandoval’s girlfriend lived in the apartment. While she was there, Ramsey saw Roman,

Reed, and Sandoval, but did not see Vasquez (she did not say whether she knew

Vasquez). Roman was sitting on the bed with A.L. trying to comfort her, Reed brought

Ramsey inside the apartment and stood talking to her, and Sandoval was on the living

room floor watching TV. She said that the apartment was “[n]ot that big[,]” and she did

not see Vasquez there. She also said that she “was told” that Vasquez “left right after it

happened.” Ramsey talked to Roman and Reed to try to find out what happened, but did

not talk to Sandoval. She did not mention that her boyfriend came with her to the

apartment or drove A.L.’s car back to Ramsey’s house.

6. {¶ 18} When Ramsey got to the apartment, A.L. “was just on the bed crying,

freaking out. She really wasn’t talking.” When Ramsey tried to console her, A.L. moved

away from Ramsey and did not want to be touched. Ramsey suggested that A.L. go to

the hospital, which A.L. resisted at first because she did not want the incident to “delay

her Navy career.” Because A.L. was hesitant, Ramsey took her to see Ramsey’s mother,

who convinced A.L. to go to the hospital. Ramsey drove her to the hospital.

{¶ 19} At the hospital, A.L. spoke to detectives and had a rape exam. During the

exam, A.L. seemed “scared” and did not seem to want people touching her.

{¶ 20} Ramsey did not call the police to report the rape, and did not know of

anyone else calling the police before A.L. went to the hospital.

3. Detective Nelson’s testimony

{¶ 21} Nelson was the detective assigned to A.L.’s case when the hospital reported

the rape. When he spoke to A.L. at the hospital, the only thing she knew about her

assailant was his Facebook name. Several days later, A.L.’s mother contacted Nelson to

tell him that they had identified the man in the Facebook profile as Vasquez. He also

heard from another detective who recognized the Facebook name and thought the profile

might belong to Vasquez. Running Vasquez’s name through police databases made

Nelson confident that Vasquez was the suspect in this case, so he put together a photo

array that included Vasquez’s picture. Another officer, who did not know the details of

the crime or which picture belonged to the potential suspect, showed the array to A.L.

7. The officer who showed A.L. the photo array testified that she immediately identified the

photo of Vasquez as her assailant.

{¶ 22} After A.L. identified Vasquez, Nelson tried to get in contact with him, but

was unsuccessful. Specifically, Nelson said that he “did not have a direct phone number

for * * *” Vasquez, but had “a couple different addresses that show[ed] as somewhat

current, so [he] sent letters to those addresses for [Vasquez] to come to in [sic].”

Vasquez did not show up for the interviews. Eventually, Nelson was able to get a DNA

sample from Vasquez when he was arrested and jailed on an unrelated warrant.

Vasquez’s DNA sample and the evidence from A.L.’s sexual assault exam were sent to

BCI for testing. BCI’s testing of the vaginal swabs from the rape kit found a mixture of

DNA that included one profile belonging to A.L. and one that was consistent with

Vasquez’s DNA.

{¶ 23} Roman, Sandoval, and Reed “refused” to speak with Nelson about the case.

However, each man eventually provided a statement to the prosecutors that Nelson had

access to. Based on those statements, Nelson believed that the rape happened “[e]xactly

the way it was told by [A.L.] * * *.”

4. Jail calls

{¶ 24} As part of its case, the state played recordings of two phone calls that

Vasquez made from jail. In one call, Vasquez told the other party that the only way he

could beat this charge was if “she” did not show up to court. He also told the other party

8. to “drop some cashkowski off” to someone, and clarified that he meant “moolah,” which

the other person on the phone interpreted as “money.” Regarding legal strategy, Vasquez

said, “Basically my job is to make it consensual * * *.” That is, he believed he would be

found guilty because the state had his DNA and A.L.’s version of the story, so he thought

the only way to succeed was to “make her a liar.”

{¶ 25} In the second call, Vasquez lamented the fact that A.L. had testified in

some court proceeding, and he predicted that she would show up for trial, which, he

believed, diminished his chances of being found not guilty.

B. Vasquez’s case

1. Reed’s testimony

{¶ 26} Reed was friends with Sandoval and Vasquez, and had known A.L. since

high school. Reed lived at the Graham Street apartment on September 10, 2017. He was

living with Sandoval; Sandoval and Vasquez’s mother leased the apartment. Reed said

that Vasquez did not live at the apartment, but “would come stay the night here and

there.” He also said that Roman “bunked rooms with [him] for a month[,]” but it was not

clear if Roman was living there on September 10.

{¶ 27} The night of the assault, Reed said that he went to a bar in downtown

Toledo with Roman and Sandoval. They left from the apartment in Roman’s car. When

they left, A.L. was not with the group and her car was not parked at the apartment. While

the men were in line to get into the bar, A.L. joined them.

9. {¶ 28} They were at the bar from around midnight to closing time. While they

were there, A.L. asked Reed to buy her drinks “about * * * two times” and asked others

to buy her drinks. Reed thought that Sandoval was the only one to buy her a drink, and

he only saw her have one drink. At closing time, Reed left with Sandoval, Roman, and

A.L. Reed did not think that A.L. was drunk when they left.

{¶ 29} When they got back to the apartment, Vasquez was there. So was

Sandoval’s girlfriend, who was sleeping in one of the bedrooms. Reed referred to it as

“her room” and said that the girlfriend lived at the apartment. Reed did not see the

girlfriend come out of the bedroom the rest of the night or see anyone but Sandoval go in.

The rest of the people in the house—Reed said there were around seven—were in the

living room drinking and dancing. While this was going on, Reed and Roman were in the

kitchen cooking.

{¶ 30} Most of the guests left around 4:00 a.m. Reed recalled Migel, Roman,

A.L., Sandoval, and Sandoval’s girlfriend being in the house after the rest of the people

“cleared out.” Roman went to his room around 4:30 a.m. After that, Reed, Sandoval,

Migel, and Vasquez were the only people left in the living room.

{¶ 31} Around the same time, Reed and Roman left the apartment to take Migel

home. Reed estimated that they were gone for about 15 minutes and got back to the

apartment around 4:45 a.m. When he and Roman got back, Sandoval was in the living

room and both bedroom doors were closed. He did not see lights on in either bedroom.

10. He and Roman went to the kitchen to start baking a cake, which is when A.L. “walked

out of the bedroom and asked Marcus who Dada was.” Reed said that he was confused

by the question because he thought that A.L. knew Vasquez from talking to him earlier in

the evening. At this point, A.L. looked “angry” and “mad.” Soon after, Vasquez came

out of the bedroom and asked “why she acting like that.” He then went into the kitchen.

Once Vasquez went into the kitchen, he was behind the curtain covering the doorway and

was not visible from the living room. Reed reported that Vasquez “was just sitting there

listening to us talk to her.” Vasquez did not leave the apartment after hearing what A.L.

said to Reed and Roman.

{¶ 32} When Ramsey came to the apartment to get A.L., she was alone. Reed said

that A.L. looked “[n]ormal” when she left. He also said that A.L. did not have a car at

the apartment that anyone needed to drive for her.

{¶ 33} On cross, Reed clarified the sequence of events. A.L. came out of the

bedroom first and asked who “Dada” was. Vasquez was still in the bedroom at that point,

but came out soon after and went into the kitchen. When Vasquez was out of the

bedroom, A.L. went back in. Roman went in with her, and Reed “was called back in * *

*” shortly after. While he was in the bedroom with A.L. and Roman, A.L. told them that

she had been raped. After about 10 minutes, Roman called Ramsey for A.L.; Reed did

not see A.L. talk to Ramsey during the phone call. During that time, A.L. was “acting

11. different.” When Ramsey arrived, Reed answered the door and led her to the bedroom

where A.L. and Roman were. A.L. left with Ramsey.

{¶ 34} According to Reed, Vasquez was still in the apartment when A.L. left and

came out of the kitchen when she was gone. He did not know if or when Vasquez left the

apartment after that because he left after A.L. and Ramsey.

{¶ 35} Reed did not contact the police about the incident, and did not speak to

them afterward. He did not initially talk to Vasquez’s attorney about the case, either.

Eventually, he gave a statement to the prosecutors and talked to defense counsel. Reed

denied telling the prosecutors that they kicked Vasquez out of the apartment after A.L.

accused him of raping her. Instead, he said they “kicked [Vasquez] out of the room. * *

* I’m not sure if I said he left the apartment, but I know that he didn’t leave the

apartment.”

{¶ 36} During a break after Reed’s testimony, a court security officer saw Reed

speaking to a group of people in the hallway. The officer did not hear everything he was

saying, but caught him “explaining what questions were being asked.” The officer could

not provide specifics beyond saying that she “heard him say this is what they asked me *

* *.” The officer identified Sandoval and Roman as people who were in the group Reed

was speaking to. Because Reed violated the court’s witness-separation order, the court

said it would allow the state “to let this transgression reflect upon the witness’ credibility

* * *” and would let the prosecutors “ask questions of the defense witnesses regarding

12. this conversation and the content of the conversation that was had regarding Mr. Reed

and his testimony.”

2. Sandoval’s testimony

{¶ 37} When Sandoval took the stand, Vasquez’s attorney first asked him about

the conversation he had with Reed in the hallway. Sandoval reported that Reed said he

was “frustrated with the questions and how they approached him. * * * Because they

were trying to reword—they were trying to trick him in to something he didn’t do or

say.” Reed did not say what those questions were or how he answered them. He did,

however, tell the group about the questions Vasquez’s lawyer asked him. Sandoval

agreed that counsel did not give him the questions in advance and only required that

Sandoval “speak the truth.”

{¶ 38} Regarding the night of the assault, Sandoval testified that he went to the bar

with Reed, Roman, and Migel. He knew A.L. through Roman, and she was not in the car

with them. They got to the bar sometime between 11:00 p.m. and midnight. A.L. did not

meet up with the group until they were at the bar, and she was with a friend at the time.

The group left at closing time, and A.L. rode back to the apartment with Sandoval, Reed,

Roman, and Migel.

{¶ 39} When they got back to the apartment, the group listened to music and kept

drinking. Sandoval recalled that another woman joined them at the apartment. Sandoval

was in the living room the whole night. He thought that people began leaving around

13. 5:00 or 6:00 a.m. He recalled that A.L. talked to Vasquez at the apartment. At some

point, A.L. and Roman went into the bedroom to the left of the bathroom. Roman came

out of the bedroom around 3:30 or 4:00 a.m. to drive Migel home. Reed went with them.

When they left, Vasquez went into the bedroom where A.L. was.

{¶ 40} While A.L. and Vasquez were in the bedroom, Sandoval could hear them

talking. He could not tell what they were saying, but said it was “laughing, talking, just

normal conversation.” He did not hear anything unusual, like screaming. Vasquez came

out to the living room to ask Sandoval for a condom, and went back to the bedroom after

Sandoval said that he did not have one. Sandoval noticed that a light was on in the

bedroom when Vasquez came out to talk to him. After Vasquez went back into the

bedroom, Sandoval could hear him and A.L. talking again.

{¶ 41} Roman and Reed were gone for approximately 15 to 20 minutes. When

they got back, A.L. called Roman into the bedroom. Sandoval first knew there was a

problem when Roman came out of the bedroom and said that A.L. accused Vasquez of

raping her. Sandoval asked Vasquez if it was true, but he did not say how Vasquez

responded.

{¶ 42} About 20 minutes later, Ramsey arrived to get A.L. The only time

Sandoval saw A.L. after she made the accusation was as she was walking out of the

apartment with Ramsey. Vasquez was sitting on the couch with him as A.L. was getting

14. ready to leave, and Roman asked Vasquez to go into the kitchen, behind the curtain

covering the doorway, so that A.L. would not see him.

{¶ 43} Sandoval did not contact the police about the incident, and did not speak to

them afterward. He did not initially talk to Vasquez’s attorney about the case, either.

Eventually, he gave a statement to the prosecutors and talked to defense counsel.

{¶ 44} On cross, Sandoval explained that Vasquez is his half-brother; they share a

mother. Their mother leased the Graham Street apartment. In September 2017, Sandoval

and Reed lived in the apartment, Roman was staying with them at the time, and Vasquez

would also stay there sometimes. They continued living together at the apartment after

the incident.

{¶ 45} Sandoval also clarified some details from that night. He said that he

smoked marijuana before leaving for the bar (but not after returning to the apartment),

had two drinks at the bar, and was unsure how much he drank at the apartment.

{¶ 46} Regarding the layout of the apartment, Sandoval said that the couch he sat

on was against the wall shared with the bedroom on the left side of the hall. The couch

faced the front door, not the hallway and bedrooms. He was watching the TV, which was

against the same wall as the front door. Despite facing away from the hallway, Sandoval

remembered a light being on in the bedroom. He explained that there was a mirror in the

hallway that reflected light into the living room when the bedroom door opened. The

night of the assault, he only had a “small lamp * * * no overhead light” on in the living

15. room, and specifically remembered light reflecting into the room. He definitively

testified that A.L. “was not asleep.” He also explained that the pictures of the apartment

were taken after he moved out, so the belongings in the pictures were not his and things

were not necessarily in the same places they were on September 10, 2017.

{¶ 47} When Roman and Reed returned to the apartment, Vasquez came out of the

bedroom. Sandoval said that A.L. did not leave the bedroom, and he did not see her until

she left the apartment with Ramsey. He heard A.L. call for Roman, but did not remember

her coming out to ask who the person in the room with her was.

{¶ 48} Sandoval and the others did not discuss the situation involving A.L.

because “there wasn’t no case pinned to [Vasquez] until he had got arrested” and A.L.

“didn’t call the police.” To Sandoval, A.L.’s accusation against Vasquez was not, as the

prosecutor put it, a “big event” because “[t]he way she reacted she didn’t seem like she

was raped, more like she got caught.” Sandoval confirmed that he did not talk to police

about the charges against Vasquez, and initially resisted speaking to prosecutors and

Vasquez’s attorney.

3. Roman’s testimony

{¶ 49} In his testimony, Roman admitted that Reed talked to a group in the

hallway after he testified, but said he did not talk about the specific questions he was

asked. According to Roman, “All [Reed] said was that they were just trying to switch up

16. the story.” Roman agreed that Vasquez’s attorney did not give him questions in advance

and only required that Reed “[t]ell the truth.”

{¶ 50} On September 10, 2017, Roman was living with his parents. Sometime

before that, he had lived at the Graham Street apartment for about a month, but had

moved back home by September 10. He said that the apartment was “Marcus’ house.”

Before the night of the assault, Roman had taken A.L., whom he had known since high

school, to the Graham Street apartment about three times.

{¶ 51} Before the group went to the bar that night, Roman was at the apartment

with Reed, Sandoval, and Migel. A.L. was not at the apartment and did not leave her car

there. The men went to the bar around 11:00 or 11:30 p.m. While they were waiting to

get in, A.L. saw them and joined them in line. Once inside, Roman went upstairs and sat

at a table. Someone bought him a beer, which was all he had to drink. A.L. asked

Roman to buy her a drink, but he refused. The group stayed at the bar until closing time,

around 2:00 or 2:30 a.m. When they left, Roman drove A.L., Reed, Sandoval, and Migel

back to the apartment. A.L. came with them because her ride left without her and she

asked to go with them.

{¶ 52} When they got back to the apartment, Migel’s girlfriend was there. Roman

did not say if Vasquez was at the apartment when they came back from the bar or if he

came later. At the apartment, the group listened to music, danced, and drank. Roman left

the living room at one point to get food from the kitchen, and later went into Reed’s

17. bedroom with A.L. He said that Vasquez was “socializing with everybody” the whole

time, and stayed in the living room with Sandoval and Reed when Roman and A.L. went

to the bedroom.

{¶ 53} Later, Roman left to take Migel home. A.L. was awake when he left. He

was gone for 15 to 20 minutes. When he got back, he went into the kitchen to bake a

cake. While in the kitchen, Roman heard A.L. come out of the bedroom and ask

Sandoval something along the lines of “[w]ho was in the room with her * * *.” Roman

said that A.L. was “calm” when he and Reed stepped out of the kitchen while she was

talking to Sandoval, but when she saw Roman, she “looked upset or something like that *

* *.” When he “went to see what was going on, * * *” A.L. said “[t]hat he raped her or

whatever * * *.” A.L. was standing right outside of the kitchen door when Roman talked

to her. He saw Vasquez come out of the bedroom to the left of the bathroom and stand in

the hall near the bedroom and bathroom doors. According to Roman, he “told [Vasquez]

he has to go, and then [he] pushed [A.L.] in to the room to see what was going on and

talk to her.” Vasquez tried to talk to Roman, but Roman “just told him just to go because

* * * [Roman] was confused on what was going on, so [he] just told [Vasquez] to go * *

*.” He did not know if Vasquez left the apartment; he only knew that Vasquez left the

bedroom area.

{¶ 54} Roman spoke to A.L. in the bedroom. While they were in there, A.L.

called Ramsey. During the call, Roman took the phone from A.L. and told Ramsey to

18. come pick up A.L. because “she’s saying she got raped * * *.” Roman remembered

Ramsey coming to get A.L. because A.L.’s car was not at the apartment. He could not

remember what time Ramsey got there, but thought it was about 15 minutes after he

“separated” A.L. and Vasquez.

{¶ 55} Roman did not call the police about the situation because he “didn’t know

what to do” and felt “[c]onfused, lost, just a lot was just running through [his] head

because [he] didn’t know what went down, so [he] didn’t know * * * what to think.” No

one else at the apartment called the police, either. Roman also testified that he did not

speak with law enforcement about this case. However, he talked to the prosecutors after

they called his dad, who told him to meet with them. He also spoke to Vasquez’s lawyer

a “long time” after counsel started trying to contact him. He said that his testimony was

the same as the statement he gave the prosecutors.

{¶ 56} On cross, Roman said that Reed “talked about what you guys were trying

to do, that’s it” when he addressed the group in the hall. He did not hear Reed talking

about specific questions that Vasquez’s lawyer asked.

{¶ 57} Regarding the events of September 10, Roman confirmed that he was not

living at the Graham Street apartment at the time; Reed, Sandoval, and Sandoval’s

girlfriend were the only residents.

{¶ 58} When the group was back at the apartment after leaving the bar, Roman

saw A.L. and Vasquez talking, but did not know how long their conversation was

19. because he “[w]asn’t really paying attention.” He was unsure when people started to

leave because he and A.L. were in the bedroom. Roman clarified that Reed was with him

when he left to take Migel home. When the three men left, Vasquez and Sandoval were

in the living room and A.L. was in the bedroom. Roman was not sure who was in the

living room when he got back because he went straight into the kitchen. He and Reed

were in the kitchen for two or three minutes before A.L. came out of the bedroom and

asked Sandoval who the person in the bedroom was. Roman could not remember if

Sandoval responded. A.L. did not ask Roman who the man was. When Roman came out

of the kitchen, A.L.’s “demeanor changed” and she said that she had been raped. He said

that A.L. made this statement when she was back in the bedroom with him. When

Roman took A.L. back to the bedroom, he saw Vasquez “getting dressed or whatever.”

{¶ 59} In the bedroom, A.L. called Ramsey. During the call, Roman got on the

phone to tell Ramsey to “come over and get [A.L.] because she says she’s been raped.”

He “grabbed” A.L.’s phone from her while she was talking to Ramsey to “tell [Ramsey]

to come over because she’s talking on the phone too long.” He wanted Ramsey to “hurry

up and get there, not sit there and prolong the situation.” When Ramsey arrived, she

went directly to the bedroom to get A.L.

{¶ 60} Roman did not talk to Vasquez after A.L. accused him of rape. He “told

[Vasquez] to go[,]” but did not say that he kicked Vasquez out of the apartment.

20. {¶ 61} Although he was close friends with Sandoval and Reed, Roman claimed

that he had not discussed the events of September 10 with them. He said that he “didn’t

want anything to do with what happened because [he] didn’t know what was going on”

and “[i]t’s not something you just talk about openly.” At first, Reed did not visit the

Graham Street apartment because he “didn’t want anything to do with what was going

on. [He] didn’t know what was going on[,]” but he eventually started going to the

apartment again. While the case was pending, Vasquez’s mother messaged Roman on

Facebook telling him to talk to Vasquez’s lawyer. Roman’s mother saw the message and

“felt like it was a threat, but [Roman] didn’t feel threatened by it * * *” because he knows

Vasquez’s mother.

{¶ 62} Roman admitted that he only spoke to the prosecutors after being

subpoenaed and being told by his dad to talk to them. He did not remember police trying

to contact him about the incident, but said that they contacted his dad. He did not

voluntarily come forward because he “didn’t want nothing to do with it.” He did not

speak to Vasquez’s attorney until after he had spoken to the prosecutors.

C. Jury instructions

{¶ 63} Before trial, the state asked for a jury instruction on consciousness of guilt

based on Vasquez fleeing the scene. After the state rested, while discussing the jury

instructions with the attorneys, the trial court noted that a “[f]oundation has been laid that

[whether Vasquez fled] is a fact in dispute here today.” Vasquez’s attorney objected to

21. the instruction because the state presented “very little” testimony regarding flight and

none of the state’s witnesses “was in a position to know if [Vasquez] was there or not.”

He believed that a flight instruction would “somewhat put[] the defendant in a position

where the jury is instructed on an issue that the state may have not even proven and they

may not have shown.” He conceded that “it’s a question as to what the jury will believe.”

The state responded that Ramsey, who arrived within about ten minutes of A.L.’s phone

call, did not see Vasquez at the apartment, and A.L. testified that she heard Vasquez

leave, which the state believed was sufficient to warrant a flight instruction. The trial

court pointed out that Vasquez’s arguments went to the weight and credibility of the

evidence, which counsel could argue to the jury, but that “sufficient foundation and

testimony has been laid * * *” to support a consciousness-of-guilt instruction.

{¶ 64} When it instructed the jury, the trial court gave the following

consciousness-of-guilt instruction:

Testimony has been admitted indicating that the defendant fled the

residence [on] Graham Street * * *. You are instructed that the defendant’s

fleeing the scene alone does not raise a presumption of guilt, but it may

tend to indicate the defendant’s consciousness of guilt. If you find that the

facts do not support that the defendant fled [the residence], or if you find

that some other motive prompted the defendant’s conduct, or if you are

unable to decide what the defendant’s motivation was, then you should not

22. consider this evidence for any purpose. However, if you find that the facts

support the defendant engaged in such conduct and if you decide that the

defendant was motivated by a consciousness of guilt, you may, but are not

required to consider that evidence in deciding whether the defendant is

guilty of the crime charged. You alone will determine what weight, if any,

to give this evidence.

D. Outcome and appeal

{¶ 65} Following its deliberations, the jury found Vasquez guilty of rape. The

trial court sentenced him to a mandatory 8 years in prison.

{¶ 66} Vasquez now appeals, raising one assignment of error:

The trial court erred by instructing the jury that evidence showed

that Mr. Vasquez “fled” the house when there was only evidence that he

left the living room and went to the kitchen, and that he left the house

entirely sometime before A.L. did.

II. Law and Analysis

{¶ 67} In his assignment of error, Vasquez argues that the trial court erred by

including an instruction on consciousness of guilt in its charge to the jury. He contends

that the facts presented at trial, when viewed in the light most favorable to the state, did

not support a finding that he “fled” from the apartment. He also argues that the error was

prejudicial because the state relied on his flight from the scene in its closing argument,

23. and he “was one of only two people in the room where A.L. says the crime occurred, and

because he had the right not to testify, the adverse inference from the jury instruction was

prejudicial.”

{¶ 68} In response, the state contends that it presented “enough evidence to at least

establish a foundation of flight[,]” so the trial court’s instruction on consciousness of guilt

was not an abuse of discretion. It also argues that Vasquez was not prejudiced by the

instruction because the instruction gave the jury the option to “consider the State’s

evidence of flight as being motivated by guilt, but * * * they were not required to

consider this evidence at all.”

{¶ 69} Trial courts are charged with giving juries “complete and accurate”

instructions that adequately reflect the issues argued in the case before them. State v.

Sneed, 63 Ohio St.3d 3, 9, 584 N.E.2d 1160 (1992). “Requested jury instructions should

ordinarily be given if they are correct statements of law that are applicable to the facts in

the case, and reasonable minds might reach the conclusion sought by the instruction.”

Miller v. Defiance Regional Med. Ctr., 6th Dist. Lucas No. L-06-1111, 2007-Ohio-7101,

¶ 40, citing Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591, 575 N.E.2d 828

(1991). We review a trial court’s determination that sufficient facts exist to support a

jury instruction for an abuse of discretion. State v. Hopings, 6th Dist. Lucas No. L-05-

1145, 2007-Ohio-450, ¶ 35. In doing so, we review the instructions as a whole to

determine whether or not the jury was likely misled in a matter materially affecting the

24. substantial rights of the party who claims error. Miller at ¶ 40, citing Becker v. Lake Cty.

Mem. Hosp. West, 53 Ohio St.3d 202, 208, 560 N.E.2d 165 (1990).

{¶ 70} Evidence of flight is admissible to show a defendant’s consciousness of

guilt. State v. Williams, 79 Ohio St.3d 1, 11, 679 N.E.2d 646 (1997). “Flight means

some escape or affirmative attempt to avoid apprehension.” (Internal quotation omitted.)

State v. Herrell, 6th Dist. Lucas No. L-16-1173, 2017-Ohio-7109, ¶ 24, citing State v.

Wesley, 8th Dist. Cuyahoga No. 80684, 2002-Ohio-4429, ¶ 19; and United States v.

Felix-Gutierrez, 940 F.2d 1200, 1207 (9th Cir.1991). To constitute “flight,” the

defendant must “appreciate that he has been identified as a person of interest in a criminal

offense and is taking active measures to avoid being found.” State v. Sanchez-Sanchez,

2022-Ohio-4080, 201 N.E.3d 323, ¶ 177 (8th Dist.), appeal not allowed, 169 Ohio St.3d

1458, 2023-Ohio-758, 204 N.E.3d 569. Under such circumstances, the jury could infer

that the defendant “‘is avoiding the police only because he or she knows he or she is

guilty and wishes to avoid the inevitable consequences of his or her crime.’” State v.

Hennigan, 11th Dist. Lake No. 2023-L-058, 2024-Ohio-404, ¶ 50, quoting State v.

James, 11th Dist. Trumbull No. 2022-T-0107, 2023-Ohio-3524, ¶ 62. But, “[f]light is

more than merely leaving the scene of the crime * * *” because it is “unrealistic to expect

persons who commit crimes to remain on the scene for ready apprehension.” Sanchez-

Sanchez at ¶ 185, citing State v. Santiago, 8th Dist. Cuyahoga No. 95516, 2011-Ohio-

3058, ¶ 30; State v. Walter, 2d Dist. Montgomery No. 29614, 2023-Ohio-2700, ¶ 100,

25. quoting State v. Cargle, 2d Dist. Montgomery No. 28044, 2019-Ohio-1544, ¶ 48 (“[T]o

constitute flight, ‘it must be clear that the defendant took affirmative steps to avoid

detection and apprehension beyond simply not remaining at the scene of the crime.’”).

{¶ 71} In this case, although there was conflicting testimony regarding what

happened after A.L. emerged from the bedroom—including whether and when Vasquez

left the house—A.L. testified that she heard Vasquez leave the house at some point after

she left the bedroom “freaking out” and “crying.” Given A.L.’s testimony, there was

sufficient evidence presented at trial that—if believed—could lead a reasonable juror to

conclude that Vasquez left the apartment shortly after the crime. See State v. Robinson,

10th Dist. Franklin No. 17AP-853, 2019-Ohio-558, ¶ 31, citing State v. White, 2015-

Ohio-3512, 37 N.E.3d 1271, ¶ 48 (2d Dist.); and State v. Wood, 2d Dist. Clark No. 2010

CA 42, 2011-Ohio-2314, ¶ 30 (flight evidence used to support an inference of guilt

should generally be limited to situations where the defendant’s flight activities happen at

a time and place near the criminal activity the defendant is fleeing).

{¶ 72} But, for a flight instruction to be warranted by the facts, there must be

evidence that Vasquez did more than leave the scene—i.e., there must be evidence that

he knew he was implicated in a crime and took steps to avoid detection or the

consequences of his actions beyond not remaining at the apartment.

{¶ 73} None of the testimony indicated that Vasquez left the apartment as a way of

preventing the police from finding him in the immediate aftermath of the assault. Each

26. witness who was in the apartment that night said that they did not contact the police, so

there was no immediate threat of officers coming to the apartment that could have

prompted Vasquez to leave. See State v. Ramos, 8th Dist. Cuyahoga No. 103596, 2016-

Ohio-7685, ¶ 29 (consciousness-of-guilt instruction based on flight was improper because

defendant “had no reason to believe that the police were actively seeking him” when he

left the crime scene); compare State v. Johnson, 6th Dist. Lucas No. L-03-1206, 2005-

Ohio-1222, ¶ 16-17 (flight instruction was proper where there was evidence that

defendant shot someone in his girlfriend’s house and left the house when his girlfriend

said she was going to call the police).

{¶ 74} But Nelson testified that he asked Vasquez “to come to in [sic]” by sending

letters to “a couple different addresses that show[ed] as somewhat current, * * *” and

Vasquez “did not show up for any of those interviews.” Nelson sent the letters because

he did not have a phone number for Vasquez.

{¶ 75} Although this evidence is rather thin—especially since it is not clear what

information the letters contained, how “current” these addresses were, or how the

addresses were connected to Vasquez—this testimony, if believed, would be sufficient

for the jury to conclude that Vasquez knew the police were looking for him. This

evidence, when combined with the testimony regarding the events that unfolded after

A.L. emerged from the bedroom—from which the jury could have concluded that

Vasquez knew that A.L. had accused him of rape, and left the scene immediately

27. thereafter—is circumstantial evidence that Vasquez knew that he was wanted by the

police and avoided talking to them.

{¶ 76} In sum, this was truly a matter of evidentiary weight for the jury—the

evidence was there for the jury to believe, or disbelieve, as it saw fit. For this reason, the

trial court’s decision to issue a flight instruction was not unreasonable, arbitrary, or

unconscionable. See State v. St. John, 2d Dist. Montgomery No. 27988, 2019-Ohio-650,

¶ 105 (flight instruction was proper when defendant avoided officers’ attempts to talk to

him despite receiving phone calls from officers and his family members telling him that

police wanted to talk to him); compare Sanchez-Sanchez, 2022-Ohio-4080, 201 N.E.3d

323, at ¶ 183 (it was not clear defendant knew he was wanted by police and took

affirmative steps to avoid apprehension—so flight instruction was not supported by the

evidence—when (1) defendant left Ohio months after committing the crime; (2)

defendant left a month after seeing victim’s parents at immigration office (and a month

after parents first reported defendant to police), but before police tried to arrest him; (3)

defendant did not take steps to conceal his destination or whereabouts; (4) detective

testified that officers tried to arrest defendant at what they “believed” was his home and

they “believed” people were in the home, but did not answer the door; and (5) defendant

did not resist arrest when he was found).

{¶ 77} Although the trial court did not abuse its discretion by giving the flight

instruction, the wording of the instruction is problematic. While a trial court has broad

28. discretion to fashion jury instructions, it is still required to “give the jury all instructions

which are relevant and necessary for the jury to weigh the evidence and discharge its duty

as the fact finder.” (Internal quotations omitted.) State v. Heiney, 2018-Ohio-3408, 117

N.E.3d 1034, ¶ 133 (6th Dist.), citing State v. White, 142 Ohio St.3d 277, 2015-Ohio-492,

29 N.E.3d 939, ¶ 46; and State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990),

paragraph two of the syllabus.

{¶ 78} In this case, the court used an instruction that is nearly identical to the

pattern consciousness-of-guilt instruction in Ohio Jury Instructions, CR Section 409.13

(Rev. Aug. 17, 2005). That instruction suggests an array of conduct that could show a

defendant’s consciousness of guilt, and allows the trial court to choose the appropriate

option or options based on the evidence produced at trial. Specifically, it states:

Testimony has been admitted indicating that the defendant (fled the

[scene] [describe jurisdiction]) (escaped from custody) (resisted arrest)

(falsified his/her identity) (changed appearance) (intimidated a witness)

(attempted to conceal a crime) (describe other conduct). You are instructed

that (describe defendant’s conduct) alone does not raise a presumption of

guilt, but it may tend to indicate the defendant’s (consciousness)

(awareness) of guilt.

(Brackets and italics sic.) Id. Consistent with one of the options in the OJI instruction,

the trial court used “fled the residence * * *” and “fleeing the scene * * *” to describe

29. Vasquez’s conduct. But in some cases—like this one—“fled the scene” does not

adequately describe the behavior that the jury can consider when determining whether the

defendant was motivated by a consciousness of guilt. See Walter, 2d Dist. Montgomery

No. 29614, 2023-Ohio-2700, at ¶ 100 (based on the evidence, the jury reasonably could

have interpreted an instruction that defendant “fled the scene” to include defendant’s

mere absence from the scene); Sanchez-Sanchez at ¶ 185-186 (“If a trial court is going to

use the pattern jury instruction, it still must tailor the instruction to accurately apply to the

evidence presented.”); State v. Burchfield, 66 Ohio St.3d 261, 263, 611 N.E.2d 819

(1993) (“While OJI is widely used in this state, its language should not be blindly applied

in all cases.”).

{¶ 79} For example, in Walter, the defendant murdered his mother in the home

they shared. The trial court gave a consciousness-of-guilt instruction that said Walter

“fled the scene.” Walter at ¶ 99. The Second District found that a consciousness-of-guilt

instruction based on flight was proper because Walter left the house and took steps to

avoid detection after the murder, including washing his hands, changing his shirt, and

telling his mother’s sister that he had gone to Georgia. Id. at ¶ 98. Nevertheless, the

Second District determined that the trial court’s instruction was potentially misleading

because neither Walter, who lived where the murder was committed, nor his mother’s

car, which Walter was sitting in when he was arrested, was at the house when the body

was discovered, and “the jury could have reasonably interpreted the trial court’s

30. instruction to mean that Walter’s absence from the home constituted ‘fleeing the

scene’”—despite “a person’s mere departure from the scene of a crime * * *” not

constituting flight. Id. at ¶ 100.

{¶ 80} We have a similar situation here. The trial court told the jury that there was

testimony that Vasquez “fled the residence [on] Graham Street, * * *” and referred to

Vasquez “fleeing the scene * * *.” In this particular case, we find that the instruction was

potentially misleading because the jury reasonably could have concluded that Vasquez

“fled the scene” based only on his departure from the apartment. To ensure that the jury

instructions were “complete and accurate,” Sneed, 63 Ohio St.3d at 9, 584 N.E.2d 1160, a

more robust instruction was required. See State v. Hartman, 161 Ohio St.3d 214, 2020-

Ohio-4440, 161 N.E.3d 651, ¶ 72 (the “generic nature” of a limiting instruction regarding

the proper use of other-acts evidence under Evid.R. 404(B), which followed the pattern

instruction in OJI and was not customized to the facts of the case, “severely reduced” the

instruction’s effectiveness).

{¶ 81} In this case, the court chose to characterize Vasquez’s conduct as “flight.”

However, given the evidence presented, it should have included a more detailed and

complete instruction explaining the affirmative conduct necessary to establish “flight”—

i.e., the specific actions Vasquez took to avoid detection, apprehension, or

consequences—and that fleeing required more than merely leaving the apartment (the

place where the crime happened). Had the court done so, it would have tailored the

31. pattern instruction to fit the facts presented to the jury and made it specific enough to

avoid potentially misleading the jury.

{¶ 82} Regardless, we find that the error was harmless. A flight instruction that

tells the jury (1) any consciousness-of-guilt finding is “entirely permissive,” (2) the

instruction only applies if the jury finds that the defendant fled due to his consciousness

of guilt, (3) the jury has discretion to give consciousness-of-guilt evidence no weight, and

(4) fleeing does not create a presumption of guilt is “neutral in its effect” and “‘all but

innocuous.’” State v. Aekins, 2023-Ohio-322, 207 N.E.3d 934, ¶ 119 (10th Dist.); Walter

at ¶ 101, quoting White, 2015-Ohio-3512, 37 N.E.3d 1271, at ¶ 51. This is because such

an instruction explains the limited use of flight evidence, instructs the jury to consider

flight only if it finds that consciousness of guilt was the defendant’s motive, and allows

the jury to disregard flight evidence entirely. White at ¶ 51. The flight instruction in this

case was properly neutral, so it was “all but innocuous” and not prejudicial. Id.; compare

State v. Orians, 179 Ohio App.3d 701, 2008-Ohio-6185, 903 N.E.2d 656, ¶ 12-15 (3d

Dist.) (trial court’s use of a consciousness-of-guilt instruction that was not neutral was

prejudicial).

{¶ 83} Moreover, we cannot say that the outcome of the trial would have been

different if the trial court did not give the flight instruction. Vasquez argues that he was

prejudiced by the “adverse inference” the flight instruction created because he and A.L.

are the only two people who know what happened in the bedroom that night, and the

32. instruction “goes directly to whether Mr. Vasquez believed he had acted appropriately or

inappropriately.” This was not the only evidence of Vasquez’s consciousness of guilt,

however. The state played a jail call in which Vasquez told the other party to bribe a

person—presumably A.L.—whose testimony he thought was enough to convict him.

Evidence of a defendant attempting to bribe a witness shows consciousness of guilt and is

sufficient to support a consciousness-of-guilt instruction. State v. Jones, 6th Dist. Erie

No. E-19-065, 2021-Ohio-2621, ¶ 62, citing State v. Leu, 2019-Ohio-3404, 142 N.E.3d

164, ¶ 39 (6th Dist.). So, although the wording of the consciousness-of-guilt instruction

based on flight was potentially misleading, Vasquez’s alleged flight from the apartment

was not the only evidence before the jury that went “directly to whether Mr. Vasquez

believed he had acted appropriately or inappropriately.”

{¶ 84} Additionally, Vasquez said on the first jail call that he needed to “make

[A.L.] a liar[,]” and Reed, Sandoval, and Roman—the other witnesses who had some

direct knowledge of the events on September 10—initially refused to discuss the case

with law enforcement, prosecutors, or defense counsel, and discussed their testimony in

defiance of the court’s separation order, which could have affected their credibility with

the jury. So, although Vasquez does not challenge the sufficiency of the evidence or

argue that his conviction is against the manifest weight of the evidence, the record shows

that his conviction was well-supported by evidence beyond his alleged flight.

33. {¶ 85} In sum, after reviewing the jury instructions as a whole and considering

them in the context of the trial, we cannot say that the trial court’s instruction on flight

affected Vasquez’s substantial rights, and the instruction was harmless beyond a

reasonable doubt. Therefore, Vasquez’s assignment of error is not well-taken.

III. Conclusion

{¶ 86} For the foregoing reasons, the July 12, 2018 judgment of the Lucas County

Court of Common Pleas is affirmed. Vasquez is ordered to pay the costs of this appeal

pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Myron C. Duhart, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

34.