State v. Coe
| Decision Date | 22 May 2003 |
| Docket Number | No. 02CA39.,02CA39. |
| Citation | 790 NE 2d 1222,153 Ohio App.3d 44 |
| Parties | The STATE of Ohio, Appellee, v. COE, Appellant. |
| Court | Ohio Court of Appeals |
Alison L. Cauthorn, for appellee.
David H. Bodiker, State Public Defender, and Molly J. McAnespie, Assistant Public Defender, for appellant.
{¶ 1} This is an appeal from a Washington County Common Pleas Court judgment of conviction and sentence. The jury found Josie Coe, defendant below and appellant herein, guilty of escape in violation of R.C. 2921.34(A)(1).
{¶ 2} Appellant raises the following assignments of error:
SECOND ASSIGNMENT OF ERROR:
"Josie Coe was denied her state and federal constitutional rights to due process and a fair trial when the trial court gave the jury improper `acquittal first' instructions and placed the same instruction on the verdict forms in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 5 and 16 of the Ohio Constitution."
THIRD ASSIGNMENT OF ERROR:
"Josie Coe was denied her constitutional right to effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution when her trial attorney failed to make a motion for judgment of acquittal at the close of the state's case, or at the close of the defense case, or before the case was given to the jury, and when her trial attorney failed to object to the trial court's improper `acquittal first' jury instructions."
{¶ 3} On December 15, 2001, appellant was arrested in Meigs County for driving while under the influence. Appellant was uncooperative, belligerent, and physically abusive with the arresting officers. In an attempt to subdue appellant, the officers maced her and wrestled her to the ground.
{¶ 4} Because the jail facilities in Meigs County do not accommodate women, the Meigs County Sheriffs Office decided to transport appellant to the Washington County Jail. The arresting officers called Meigs County Sheriffs Deputy James Stacy to transport appellant.
{¶ 5} Deputy Stacy cuffed appellant's hands in the front of her body, placed her in a transport van, and departed for Marietta. As the deputy approached Belpre, appellant began complaining that her handcuffs were too tight. Deputy Stacy decided to stop at a truck stop to adjust appellant's handcuffs.
{¶ 6} Shortly after leaving the truck stop, Deputy Stacy received a phone call from the Meigs County Sheriffs Office advising him that a knife was missing from the area where appellant had washed the mace away from her face. The caller cautioned the deputy that appellant may have taken the knife. Deputy Stacy thus decided to stop at a gas station in Belpre to check to see whether appellant had the knife.
{¶ 7} Once the deputy stopped the van at the gas station, the van door opened and appellant started exiting the van. Deputy Stacy tried to return appellant to the van, but she was uncooperative. Appellant yelled and screamed at the deputy that she did not "want to go" and complained that her handcuffs were too tight. Appellant remained uncooperative and Deputy Stacy warned her that if she refused to cooperate and return to the van, he would mace her. Deputy Stacy ultimately used the mace and then decided to call for assistance.
{¶ 8} Ohio State Highway Patrol Trooper Seabolt arrived on the scene and tried to help Deputy Stacy to subdue appellant. Appellant continued to be uncooperative, however. After the trooper threatened to mace her again, she decided to return to the van.
{¶ 9} Belpre Police Sergeant Earnest D. Clevenger also arrived at the gas station. Sergeant Clevenger noticed that appellant did not want to return to the van. The sergeant observed appellant sit in the van's doorway with her feet on the ground. Sergeant Clevenger stated that once Deputy Stacy and Trooper Seabolt persuaded appellant to return inside the van, she kept trying to exit and opening the door. He stated that each time the officers slid the door shut, appellant reached out, grabbed it, and pulled it open.
{¶ 10} During the encounter, Trooper Seabolt advised Deputy Stacy that the Washington County Jail would not accept an inmate who had been maced unless the inmate first went to the hospital. Trooper Seabolt stated that he would escort Deputy Stacy to the hospital.
{¶ 11} As Deputy Stacy drove toward the hospital, the van door opened. The door opened when the van rounded a curve at approximately forty to forty-five miles per hour. When the deputy heard the door open, he applied the brakes, which forced the door to shut. The door then opened again and appellant fell out of the van while hanging on to the door handle.
{¶ 12} On February 14, 2002, the Washington County Grand Jury returned an indictment charging appellant with escape, in violation of R.C. 2921.34(A)(1).1 Appellant initially entered a guilty plea, but subsequently withdrew her plea, and the case proceeded to trial.
{¶ 13} On June 25, 2002, the trial court held a jury trial. The state presented the testimony of Deputy Stacy, Trooper Seabolt, and Sergeant Clevenger, all of whom testified that appellant was uncooperative throughout her journey to the Washington County Jail and that appellant's actions and words indicated that she did not want to go to jail.
{¶ 14} After closing arguments, the trial court instructed the jury on both escape and a lesser included offense of disorderly conduct. In advising the jury how to consider the greater and lesser offenses, the trial court instructed the jury:
"In the event you find the Defendant, Josie Coe, not guilty of the charge of escape, then and only in that event, you must continue your deliberations to determine whether or not the Defendant, Josie Coe, is guilty of the lesser included offense of disorderly conduct."
{¶ 15} The trial court further instructed the jury how to complete the verdict forms for both the greater and lesser offenses. The court quoted the verdict form, with interjections in italics:
{¶ 16} Appellant's trial counsel did not object to the trial court's instructions and expressed satisfaction.
{¶ 17} On June 25, 2002, the jury found appellant guilty of escape. The trial court subsequently sentenced appellant to eleven months in prison. Appellant filed a timely notice of appeal.
{¶ 18} In her first assignment of error, appellant asserts that insufficient evidence exists to support her conviction and that her conviction is against the manifest weight of the evidence. Appellant essentially complains that because no direct evidence exists that she opened the door, the evidence was insufficient and against the manifest weight.
{¶ 19} We initially note that appellant failed to move for a Crim.R. 29(A) judgment of acquittal. In the past, this court2 and numerous other Ohio appellate courts,3 relying primarily upon State v. Roe (1989), 41 Ohio St.3d 18, 25, 535 N.E.2d 1351,4 and Dayton v. Rogers (1979), 60 Ohio St.2d 162, 163, 14 O.O.3d 403, 398 N.E.2d 781,5 have held that if a criminal defendant fails to timely file a Crim.R. 29 motion for acquittal, the defendant waives any error, absent plain error, as to sufficiency of the evidence.6 In two apparently little-recognized cases, however, the Ohio Supreme Court stated that a failure to timely file a Crim.R. 29(A) motion during a jury trial does not waive an argument on appeal concerning the sufficiency of the evidence. See State v. Jones (2001), 91 Ohio St.3d 335, 346, 744 N.E.2d 1163; State v. Carter (1992) 64 Ohio St.3d 218, 223, 594 N.E.2d 595. In both Jones and Carter, the Ohio Supreme Court stated that the defendant's "not guilty" plea preserves his right to object to the alleged insufficiency of the evidence. Id. Moreover, because "a conviction based on legally insufficient evidence constitutes a denial of due process," State v. Thompkins (1997), 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541, a conviction based upon insufficient evidence would almost always amount to plain error. See State v. Hermann, Erie App. No. E-01-039, 2002-Ohio-7307, 2002 WL 31888210, H 24; State v. Casto, Washington App. No. 01CA25, 2002-Ohio-6255, 2002 WL 31538799; State v. Arrowood (Sept. 27, 1993), Pike App. No. 93CA505, 1993 WL 386328, at 6.
{¶ 20} Thus, in the case sub judice, although appellant failed to file a Crim.R. 29(A) motion for judgment of acquittal, we will nonetheless consider her argument that the state failed to present sufficient evidence to support her conviction.
{¶ 21} When an appellate court reviews the sufficiency of the evidence, the inquiry focuses primarily upon the adequacy of the evidence; that is, whether the evidence, if believed, reasonably could support a finding of guilt beyond a reasonable doubt. See State v....
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