State v. Pierce, 105389

• Decision Date: 16 November 2017
• Docket Number: No. 105389,105389
• Citation: 2017 Ohio 8578,100 N.E.3d 860
• Parties: STATE of Ohio, Plaintiff–Appellee v. Johnnie PIERCE, Defendant–Appellant
• Court: Ohio Court of Appeals

100 N.E.3d 860

2017 Ohio 8578

STATE of Ohio, Plaintiff–Appellee

v.Johnnie PIERCE, Defendant–Appellant

No. 105389

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: November 16, 2017

Paul A. Mancino, Jr., Mancino Mancino & Mancino, 75 Public Square Building, Suite 1016, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT

Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Andrea N. Isabella, Assistant Prosecuting Attorney, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE

BEFORE: Celebrezze, J., Keough, A.J., and S. Gallagher, J.

JOURNAL ENTRY AND OPINION

FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Defendant-appellant, Johnnie Pierce ("Pierce"), brings this appeal challenging his convictions and the trial court's sentence for escape and two counts of harassment by inmate. Specifically, Pierce argues that (1) he should have been convicted of fifth-degree felony escape because the jury verdict form did not indicate that the most serious offense for which he was under detention was a felony of the third, fourth, or fifth degree; (2) his due process rights were violated when the trial court denied defense counsel's Batson challenge and failed to provide an intoxication instruction to the jury; and (3) his harassment by inmate convictions were not supported by sufficient evidence. After a thorough review of the record and law, this court affirms in part, modifies in part, and remands for further proceedings consistent with this opinion.

I. Factual and Procedural History

{¶ 2} On June 12, 2015, Cleveland Police Officers responded to radio call for males fighting near the intersection of Prospect Avenue and East 4th Street. Upon arrival at the scene, officers encountered Pierce, who appeared to be intoxicated, disheveled, and confrontational. Pierce was standing in the vicinity of a broken chair and a broken glass window. When the officers approached Pierce, he made obscene and threatening remarks. The decision was made to detain Pierce based on the officers' belief that he had been involved in the fight and his proximity to the broken chair and glass window. Pierce was detained for vandalism and disorderly conduct while intoxicated.

{¶ 3} Pierce began vomiting and urinating in the backseat of the police car. The officers became concerned that Pierce was highly intoxicated or experiencing an overdose, and decided to take him to St. Vincent Charity Hospital for treatment.

{¶ 4} After Pierce was treated, the officers transported him from the hospital to the police car in a wheelchair. Pierce suddenly jumped out of the chair and attempted to flee the area on foot. The officers eventually caught up to Pierce and brought him to the ground. Pierce continued to fight the officers, attempting to strike them with his elbows and feet. Furthermore, he attempted to bite the officers and began spitting at them. Pierce received additional medical treatment for the injuries that he sustained during the altercation with the officers.

{¶ 5} In Cuyahoga C.P. No. CR–15–596666–A, the Cuyahoga County Grand Jury returned a seven-count indictment charging Pierce with felonious assault, a first-degree felony in violation of R.C. 2903.11(A)(1) with a furthermore specification alleging that the victim was a peace officer; vandalism, a fifth-degree felony in violation of R.C. 2909.05(B)(1)(b) ; escape, a third-degree felony in violation of R.C. 2921.34(A)(1) ; assault, a fourth-degree felony in violation of R.C. 2903.13(A) with a furthermore specification alleging that the victim was a peace officer; two counts of harassment by inmate, fifth-degree felonies in violation of R.C. 2921.38(B) ; and resisting arrest, a second-degree misdemeanor in violation of R.C. 2921.33(A). Pierce was arraigned on July 30, 2015. He pled not guilty to the indictment.

{¶ 6} A jury trial commenced on October 17, 2016. Cleveland Police Officers Justen Davis, Aaron Petitt, and Christopher Hoover testified on behalf of the state. At the close of the state's evidence, defense counsel moved for a Crim.R. 29 judgment of acquittal. The trial court granted defense counsel's motion on the vandalism offense charged in Count 2; the court denied the motion on all other counts. The defense rested after calling one witness, and renewed the Crim.R. 29 motion, which the trial court denied.

{¶ 7} On October 21, 2016, the jury found Pierce not guilty on the felonious assault, assault, and resisting arrest counts. The jury found Pierce guilty on the escape count and both counts of harassment by inmate. On October 26, 2016, the trial court referred Pierce to the probation department for a presentence investigation report and set the matter for sentencing.

{¶ 8} The trial court held a sentencing hearing on December 20, 2016. The trial court imposed a prison sentence of two years on the escape count and one year on each of the harassment by inmate counts. The trial court ordered the counts to run concurrently.

{¶ 9} On January 20, 2017, Pierce filed the instant appeal challenging his convictions and the trial court's sentence. He assigns four errors for review:

I. [Pierce] was denied due process of law when he was sentenced for a felony of the third degree when there was no determination by the jury as to what the underlying offense was for the offense of escape.

II. [Pierce] was denied due process of law when the court failed to state [Pierce's] Batson challenge.

III. Defense was denied due process of law when the court, on its own, did not instruct the jury on intoxication.

IV. [Pierce] was denied due process of law when he was convicted of harassment by an inmate.

II. Law and Analysis

A. Verdict Form

{¶ 10} In his first assignment of error, Pierce challenges his conviction for third-degree felony escape. Specifically, Pierce argues that the jury verdict form omitted the required finding under R.C. 2921.34(C)(2)(b) that makes the offense a third-degree felony. As such, he argues that he could only be convicted of fifth-degree felony escape.

{¶ 11} Pierce was charged with escape in violation of R.C. 2921.34(A)(1), which provides, in relevant part, 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[.]" Pursuant to R.C. 2921.34(C)(2), the degree of the offense of escape is determined by the most serious offense for which the offender was under detention at the time of the offense. Escape is a felony of the second degree "when the most serious offense for which the person was under detention * * * is aggravated murder, murder, or a felony of the first or second degree[.]" Escape is a felony of the third degree "when the most serious offense for which the person was under detention * * * is a felony of the third, fourth, or fifth degree or an unclassified felony[.]" Escape is a felony of the fifth degree when "[t]he most serious offense for which the person was under detention is a misdemeanor."

{¶ 12} Count 3 alleged that Pierce "did, knowing [he was] under detention, * * * purposely break or attempt to break the detention, * * * and [the] offense for which [Pierce] was under detention * * * was a felony of the third, fourth, or fifth degree[.]" This language elevated the escape offense from a fifth-degree felony to a third-degree felony.

{¶ 13} The trial court instructed the jury on the offense-enhancing language:

Before you can find [Pierce] guilty of escape, you must find beyond a reasonable doubt that one or about the 12th day of June, 2015, in Cuyahoga County, Ohio, [Pierce] did, knowing he was under detention, * * * purposely break or attempt to break the detention, * * * and the offense for which [Pierce] was under detention was a felony of the third, fourth, or fifth degree, or unclassified felony.

(Tr. 580.) However, the verdict form on which the jury found Pierce guilty did not include a degree for the escape offense nor the aggravating element that elevated the offense from a fifth-to a third-degree felony. The verdict form on which the jury found Pierce guilty provided, in relevant part: "We the jury in this case, * * * do find [Pierce] guilty of escape, in violation of 2921.34(A)(1) of the Ohio Revised Code as charged in Count Three of this indictment." (Tr. 648–649.)

{¶ 14} R.C. 2945.75(A) provides:

When the presence of one or more additional elements makes an offense one of more serious degree: * * * (2) A guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged.

{¶ 15} In the instant matter, Pierce argues that the jury did not find that the most serious offense for which he was under detention was a felony of the third, fourth, or fifth degree. Pierce contends that the jury merely found that he was guilty of escape as charged in the indictment.

{¶ 16} In support of his argument, Pierce directs this court to State v. Pelfrey , 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735. In Pelfrey , the Ohio Supreme Court held that "[p]ursuant to the clear language of R.C. 2945.75, a verdict form signed by a jury must include either the degree of the offense of which the defendant is convicted or a statement that an aggravating element has been found to justify convicting a defendant of a greater degree of a criminal offense." Id. at syllabus. If the verdict form fails to state either the degree of the offense or state that an additional element is present, R.C. 2945.75(A)(2) provides that "a guilty verdict constitutes a finding of guilty of the least degree of the offense charged." Pelfrey at ¶ 13.

{¶ 17} The state, on the other hand, directs this court to State v. Eafford , 132 Ohio St.3d 159, 2012-Ohio-2224, 970 N.E.2d 891. In Eafford , the Ohio Supreme Court "reversed this court for strictly applying Pelfrey to a challenge of a jury verdict...