State v. Brown, 2007 Ohio 5787 (Ohio App. 10/29/2007)
| Decision Date | 29 October 2007 |
| Docket Number | No. CA2006-10-120.,CA2006-10-120. |
| Citation | 2007 Ohio 5787 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Shirley Brown, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Rachel A. Hutzel, Warren County Prosecuting Attorney, Andrew L. Sievers, 500 Justice Drive, Lebanon, OH 45036, for plaintiff-appellee
Darin S. Barber, 12 East Warren Street, Lebanon, OH 45036, for defendant-appellant
{¶1} Defendant-appellant, Shirley Brown, appeals her conviction in the Warren County Court of Common Pleas on one count of complicity to escape.1 For the reasons set forth below, we affirm appellant's conviction.
{¶2} This case arises out of appellant's involvement with Joseph Huffman, an inmate of the Lebanon Correctional Institution in Warren County, Ohio, following his unauthorized departure from prison. On a Friday evening in June 2006, Huffman, who was working on the unsecured farm area of the prison, took a state-owned truck and proceeded to drive off the premises. Huffman drove to a Wal-Mart located in Butler County, Ohio, whereupon he exited the truck and asked a passerby, Adrian Dunn, for a ride. Dunn agreed to drive Huffman to a tavern in Covington, Kentucky, and on the way there, allowed Huffman to use his cellular telephone. Huffman called one of appellant's friends, Krista Sweet, who in turn called appellant and put her in contact with Huffman.
{¶3} Appellant had become acquainted with Huffman while he was incarcerated. She wrote him letters and visited him on a regular basis. On the evening in question, appellant agreed to meet Huffman in Covington, Kentucky shortly after speaking with him. She picked him up at a mutual meeting place and drove him to Sweet's apartment in Cincinnati, Ohio. While at Sweet's apartment, appellant provided Huffman with a change of clothes which she had previously purchased for him while he was incarcerated.
{¶4} The two then left the apartment, and appellant drove Huffman back to Kentucky to see various family members. Appellant also allowed Huffman to use her cellular telephone to contact family members and friends while she drove. The two spent the night at the home of one of Huffman's sisters, and the next day, appellant continued driving Huffman to see family members. They eventually made their way to the home of another of Huffman's sisters that night, where they were both apprehended by authorities.
{¶5} Appellant was later indicted on one third-degree felony count of complicity to escape based upon her actions in assisting Huffman following his unauthorized departure from the Lebanon Correctional Institution. A jury trial was held on September 14, 2006, at the conclusion of which appellant was found guilty and sentenced to one year in prison. Appellant now appeals her conviction, advancing one assignment of error.
{¶6} Assignment of Error No. 1:
{¶7} "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT DENIED THE MOTION FOR JUDGMENT OF ACQUITTAL THAT WAS MADE AT THE CLOSE OF THE STATE'S CASE IN CHIEF AND RENEWED AT THE CLOSE OF ALL THE EVIDENCE."
{¶8} In her sole assignment of error, appellant advances three arguments in support of her contention that the trial court erred in denying her Crim.R. 29 motion for acquittal. First, appellant argues insufficient evidence was presented at trial to support her conviction for complicity to escape, where the evidence indicated appellant rendered assistance to Huffman after he left prison grounds and after an immediate pursuit of Huffman had ended. Second, appellant argues venue did not lie in Warren County for the charged offense because none of her actions in assisting Huffman occurred in Warren County. Finally, appellant argues insufficient evidence was presented to support her conviction because there was no in-court identification of her at trial. We find each of appellant's arguments without merit.
{¶9} Pursuant to Crim.R. 29, a court shall not enter a judgment of acquittal unless "the evidence is insufficient to sustain a conviction of [the] offense * * *." A sufficiency of the evidence argument challenges whether the state has presented adequate evidence on each element of the offense to allow the case to go to the jury or to sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52.
{¶10} In reviewing the sufficiency of the evidence to support a criminal conviction, the reviewing court 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 (1991), 61 Ohio St.3d 259, 273. After viewing the evidence in a light most favorable to the prosecution, the relevant inquiry is whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Smith, 80 Ohio St.3d 89, 113, 1997-Ohio-355. In considering the sufficiency of the evidence, a reviewing court must give "full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781. See, also, State v. White, Franklin App. No. 06AP-607, 2007-Ohio-3217, ¶26.
{¶11} We first address appellant's argument that the state failed to produce sufficient evidence to prove she aided and abetted Huffman in committing escape. Appellant contends the evidence presented at trial does not support a finding that she aided and abetted Huffman's escape because Huffman had completed the crime before appellant came into contact with him on the evening in question. We disagree.
{¶12} Pursuant to R.C. 2923.03(A)(2), "[n]o person, acting with the kind of culpability required for the commission of an offense, shall * * * [a]id or abet another in committing the offense * * *." Ohio courts have consistently defined the term "aid and abet" to mean to assist, incite or encourage. State v. Wolfe (Dec. 11, 2000), Madison App. No. CA99-11-029, at 35, citing Horstman v. Farris (1999), 132 Ohio App.3d 514, 527. "Mere approval or acquiescence, without expressed concurrence or the doing of something to contribute to an unlawful act, is not an aiding and abetting of the act." Id., quoting State v. Stepp (1997), 117 Ohio App.3d 561, 568.
{¶13} Further, "[w]ithout previous connection with the transaction, one is not an aider and abettor unless he knowingly does something which he ought not to do, or omits to do something he ought to do, which assists or tends in some way to affect the doing of the thing which the law forbids; in order to aid or abet, whether by words, acts, encouragement, support or presence, there must be something more than a failure to object unless one is under a legal duty to object." Id. at 35-36, quoting Smith v. State (1931), 41 Ohio App. 64, 68. Significantly, this court has stated that "[a] person is not an aider and abettor where that person's conduct, in relation to the offense, takes place wholly after the offense is committed." Id. at 36.2
{¶14} Escape is codified under R.C. 2921.34(A)(1), which provides that "[n]o person, knowing the person is under detention or being reckless in that regard, shall purposely break or attempt to break the detention, * * *." R.C. 2921.01(E), in relevant part, defines "detention" as "* * *; confinement in any public * * * facility for custody of persons charged with or convicted of crime * * *."
{¶15} The Ohio General Assembly has not explicitly defined escape as a continuing offense, or as complete at any particular point in time. In addition, neither the Ohio Supreme Court nor any Ohio appellate district appears to have addressed this issue, though courts have interpreted the term "detention" to determine under what circumstances an escape occurs. See, e.g., State v. Shook (1975), 45 Ohio App.2d 32, 34-35. These cases are instructive to our analysis of whether escape is a continuing offense or at what point in time the offense is completed.
{¶16} In State v. Smith (1985), 29 Ohio App.3d 194, paragraph one of the syllabus, for instance, the Eighth District Court of Appeals held that "[t]he breaking of detention as prohibited by R.C. 2921.34(A) is the termination of the status of being in legal custody, either with or without the use of force, and when it is done purposely the offense of escape has been committed." In applying this definition to the facts of the case, the court held that a juvenile who had been ordered to reside in a group home following her adjudication as delinquent, was being "detained" such that she could be charged with escape when she left the premises without permission. Id. at 195.
{¶17} Similarly, other Ohio courts have made clear that a detainee need not break physical restraint to violate R.C. 2921.34. In State v. Shook, the Third District Court of Appeals explained that Shook, 45 Ohio App.2d at 34-35. (Emphasis added.)
{¶18} However, the United States District Court for the Sixth Circuit has recently addressed escape pursuant to Kentucky law, concluding that the offense is a continuing offense. See United States v. Lancaster (C.A.6, Aug. 31, 2007), __F.3d__, 2007 WL 2457448. Like Ohio's escape statute, the Kentucky statute at...
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