Opinion
No. 107655
05-23-2019
STATE of Ohio, Plaintiff-Appellee, v. Jessie MARCH, Defendant-Appellant.
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Shannon M. Raley, Assistant Prosecuting Attorney, for appellee. Mark A. Stanton, Cuyahoga County Public Defender, and Cullen Sweeney and Frank Cavallo, Assistant Public Defenders, for appellant.
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Shannon M. Raley, Assistant Prosecuting Attorney, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and Cullen Sweeney and Frank Cavallo, Assistant Public Defenders, for appellant.
JOURNAL ENTRY AND OPINION
MARY J. BOYLE, P.J.: {¶ 1} Defendant-appellant, Jessie March, appeals his conviction. He raises four assignments of error for our review:
1. Appellant's conviction for having a weapon while under disability is not supported by sufficient evidence required by state and federal due process.
2. Appellant's conviction for having a weapon while under disability violates due process when the disability is based on a bench warrant of which the defendant is unaware.
3. The trial court erred by finding the defendant guilty against the manifest weight of the evidence.
4. The trial court erred and violated Mr. March's due process rights by admitting his extrajudicial statements into evidence without the prosecution having first established the "corpus delecti" of the crime.
{¶ 2} Finding merit to his first assignment of error, we reverse and vacate March's conviction for having a weapon while under disability.
I. Procedural History and Factual Background
{¶ 3} In October 2017, the Cuyahoga County Grand Jury indicted March for one count of improperly discharging a firearm into a school in violation of R.C. 2923.161(A)(2), a felony of the second degree; one count of discharging a firearm on or near prohibited premises in violation of R.C. 2923.162(A)(3), a felony of the third degree; and one count of having weapons while under disability in violation of R.C. 2923.13(A)(1), a felony of the third degree. The counts for improperly discharging a firearm into a school and discharging a firearm on or near prohibited premises carried one- and three-year firearm specifications. All of the counts carried a forfeiture-of-weapon specification.
{¶ 4} Prior to trial, the state dismissed the counts for improperly discharging a firearm into a school and discharging a firearm on or near prohibited premises. March waived his right to a jury trial, and the case proceeded to a bench trial.
{¶ 5} During trial, the state presented evidence that on April 2, 2017, officers received a call for shots fired on the "3600 block area" of East 147th Street. Officer Jacob Tessin testified that upon arriving at the location to offer backup assistance, he saw "a group of males sitting on the front porch" of a nearby residence and "went to ask them if they heard gunshots or if they could give [him] any type of information that [he] could gather to help the other car, assist them in their investigation." Footage from Officer Tessin's body camera shows that the group of males were actually sitting on the steps leading up to March's residence when officers approached.
{¶ 6} Upon approaching the males, Officer Tessin saw a black rifle, a Diamondback Firearm, LLC, DB 15, with one black drum magazine on the second to top step leading up to the porch. The gun was sitting behind an unidentified male and next to March, who was standing on the same step as the firearm. Officer Tessin "immediately grabbed" for the firearm, but stated at trial that "as [he] was reaching for the firearm, one male, [March], was also going * * * for the firearm, as well." Officer Tessin told March to stop. He said that March asked Officer Tessin "what [he] was doing with his gun." Footage from Officer Tessin's body camera shows that as he stepped toward the gun and reached for it, March also stepped toward the gun with a plastic bag in his hand and leaned down toward the firearm.
{¶ 7} On cross-examination, Officer Tessin stated that he never saw March touch the firearm. He also testified that he arrested a juvenile at the scene who was found to have spent shell casings in his pocket, but that he did not know whether the shell casings matched the gun that the officers confiscated. Officer Robert Alford, who was the initial responder, stated that they did not have any witnesses who saw March fire or possess a gun.
{¶ 8} Officers confiscated the gun and placed March in handcuffs and in the back of a squad car. March refused to give officers his name or other identifying information when asked by officers, who described March as "rather uncooperative" and "reluctant" toward officers.
{¶ 9} Officer Alford testified that after placing March in the back of the squad car, officers "decided to gather up all of the males that were on the * * * porch because they matched the description given to [him] by radio, and began to try to get all of their information" to run through LEADS, which allows officers "to go in and pull up persons by name, date of birth, [and] social security number" and tells officers "whether persons have warrants for their arrests[.]" Upon discovering a warrant for March's arrest, officers arrested March for having weapons while under disability and "for shooting a firearm across his property line."
{¶ 10} Officer James Kooser, a forensic scientist for the Cuyahoga County Regional Forensic Science Laboratory, testified that he examined the firearm that officers collected and said that the firearm was operable when it was submitted to him for analysis in October 2017.
{¶ 11} Both the state and March stipulated to state's exhibit No. 1, which was a certified journal entry from Cleveland M.C. No. 2016 CRV 9272, stating that a capias was issued for March's failure to appear for a hearing related to a charge of disorderly conduct intoxication on June 1, 2016.
{¶ 12} The state rested, and March moved for dismissal under Crim.R. 29, which the trial court denied.
{¶ 13} March testified on his own behalf. He said that on April 2, 2017, he was in his house on East 147th Street when he heard gunfire. He said he "looked out [his] back porch and * * * saw a group of individuals gathered on 149th Street." He said he then went out onto his front porch, where his brother and "other individuals" were. He said that there was a firearm on the porch as well and that the firearm belonged to one of his brother's friends. March testified that he did not possess, fire, or touch the firearm that day, but he admitted that when officers showed up, he told them that the firearm was his. March said he told officers that because he "had a few negative experiences with the Fourth District Police Department," he was "just being stupid." March admitted to being "disruptive" and "difficult" toward officers, but said that he lied to officers when he told them that the gun was his.
{¶ 14} On cross-examination, March said he lied to police about the gun being his because he "was kind of looking to make their day worse or make their investigation harder to conduct[.]" He said he wanted to "give them a hard time" because officers had given him a "hard time" in the past. March testified that he did not know there was a warrant out for his arrest for the municipal court case.
{¶ 15} March then rested his case and renewed his Crim.R. 29 motion, which the trial court, again, denied. {¶ 16} The trial court found March guilty of having weapons while under disability with a forfeiture specification. The trial court sentenced March to time served and ordered March to pay costs.
At sentencing, the trial court noted that March had 276 days of jail-time credit.
{¶ 17} It is from this judgment that March now appeals.
II. Law and Analysis
A. Sufficiency of the Evidence
{¶ 18} In his first assignment of error, March argues that there was insufficient evidence to establish that he was a "fugitive from justice," which is required under R.C. 2923.13(A)(1). March maintains that the state failed to present any evidence that he knew or was aware of the warrant or that he "engaged in any flight from the jurisdiction, or any attempt to flee." He points to the fact that the warrant "had been active for nearly a year, during which time he was under active probation supervision in felony court, never left the jurisdiction and made no effort to flee during multiple interactions with law enforcement." Finally, he argues that while the state "may not have been required to establish that any particular mens rea with respect to the alleged fugitive status, [it] was required to establish that the fugitive status actually existed."
{¶ 19} Crim.R. 29(A) provides for an acquittal "if the evidence is insufficient to sustain a conviction of such offense or offenses." A sufficiency challenge essentially argues that the evidence presented was inadequate to support the jury verdict as a matter of law. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). " ‘The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " State v. Getsy , 84 Ohio St.3d 180, 193, 702 N.E.2d 866 (1998), quoting Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "[A] conviction based on legally insufficient evidence constitutes a denial of due process." Thompkins at 386, 678 N.E.2d 541, citing Tibbs v. Florida , 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). When reviewing a sufficiency of the evidence claim, we review the evidence in a light most favorable to the prosecution. State v. Hill , 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996).
{¶ 20} March was convicted of having weapons while under disability under R.C. 2923.13(A)(1), which states, "[N]o person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if * * * the person is a fugitive from justice."
{¶ 21} The Revised Code does not define "fugitive from justice" as applied to R.C. 2923.13(A)(1). Other appellate districts have sought to define the term. In State v. Cherry , 171 Ohio App.3d 375, 2007-Ohio-2133, 870 N.E.2d 808 (2d Dist.), the court, in examining whether there was sufficient evidence to support the defendant's conviction for having weapons while under a disability under R.C. 2923.13(A)(1), turned to extradition laws to define "fugitive from justice." Under those laws, a "fugitive from justice" is defined as a person who " ‘(1) is suspected of or has been convicted of a crime; (2) is sought by the jurisdiction so that it may subject the person to its criminal justice system, and (3) has left the jurisdiction and is found within the boundaries of another.’ " Id. at ¶ 19, quoting State v. Adkins , 80 Ohio App.3d 817, 610 N.E.2d 1143 (9th Dist.1992). Based on that definition, the Second District stated,
[I]n the absence of an arrest warrant, the broadest reach of [ R.C. 2923.13(A)(1) ] consistent with a strict construction in the favor of the accused is that the alleged fugitive from justice must: (1) have incurred guilt – i.e., be guilty of having committed some offense; (2) be aware that he is being sought by police in connection with that offense; and (3) being aware that he is being sought by police, take some affirmative action to elude detection by police.
Id. at ¶ 21. The court stated that "[t]he confluence of these three elements would serve as notice to the individual that he has become, or is becoming, a fugitive from justice, thereby working a statutory disability upon the right that he would otherwise have to bear a firearm." Id.
The Second District reaffirmed its definition of "fugitive from justice" in State v. Grimes , 2d Dist. Greene No. 2009-CA-30, 2010-Ohio-5385, 2010 WL 4395466, ¶ 21.
{¶ 22} In State v. Hall , 5th Dist. Stark No. 2004CA00174, 2005-Ohio-167, 2005 WL 100961, the Fifth District also defined "fugitive from justice" as meaning a person who "(1) is suspected of or has been convicted of a crime; (2) is sought by the jurisdiction so that he may be subjected to its criminal system[;] and (3) has left the jurisdiction and is found within the boundaries of another." Id. at ¶ 14, citing Adkins .
While Hall defines "fugitive from justice," the court's analysis does not apply those elements because the defendant's appeal challenged the trial court's jury instruction on flight. While the appellant argued that he was not a fugitive from justice because "he was unaware of the criminal charges against him and there was no evidence he fled to another jurisdiction[,]" the term's definition and application was not determinative of the defendant's assignment of error. The Fifth District ignored the defendant's arguments and relied on cases supporting the trial court's instruction.
{¶ 23} Notably, the Fifth District's definition omits a requirement that a defendant be aware that he is being sought by the police, whereas the Second District's definition requires awareness. We adopt the Second District's definition requiring the state to show that the defendant was aware that he was being sought by police for a number of reasons. First, in enacting R.C. 2923.13(A)(1), the legislature "intended to keep firearms out of the hands of dangerous or potentially dangerous individuals. Included in that class, and listed first in order of importance, are fugitives who are trying to avoid capture for criminal offenses for which they have been charged." State v. McClelland , 11th Dist. Portage Nos. 1488 and 1491, 1985 WL 4636, *3, 1985 Ohio App. LEXIS 9740, *10 (Dec. 20, 1985). Thus, the reason that fugitives from justice are prohibited from carrying firearms is because they are inherently more dangerous because they intend to avoid capture by the police. The requirement that one intends to avoid capture inherently presumes that that person is aware that he is sought for capture. It is hard to imagine a scenario in which a person is considered to have fled or escaped without knowing that he is being sought in the first place. Further, by failing to appear for his municipal court case, the trial court sent a letter to March, evidencing that he was not considered dangerous to the community. Thus, we find that to be a fugitive from justice, a defendant must be aware that he is being sought by the jurisdiction.
{¶ 24} Accordingly, we define "fugitive from justice" in R.C. 2923.13(A)(1) as a person who "(1) [has] incurred guilt – i.e., be guilty of having committed some offense; (2) [was] aware that he is being sought by police in connection with that offense; and (3) being aware that he is being sought by police, [took] some affirmative action to elude detection by police."
{¶ 25} The state argues that "there is no requirement of actual fleeing, running or escaping under R.C. 2923.13(A)(1)." However, as we stated, R.C. 2923.13(A)(1) requires the state to show that March was a fugitive from justice, which, in turn, requires the state to show that March "took an affirmative action to elude detection by police." The term "elude" has been defined as " ‘to avoid slyly or adroitly.’ " State v. Donkers , 170 Ohio App.3d 509, 2007-Ohio-1557, 867 N.E.2d 903, ¶ 101 (11th Dist.), citing Webster's Third New International Dictionary . Therefore, contrary to the state's belief, R.C. 2923.13(A)(1) does require evidence that a defendant acted to avoid police in some manner.
{¶ 26} With those elements in mind, we agree with March that there was insufficient evidence to establish that he was a "fugitive from justice" as is required for a conviction under R.C. 2923.13(A)(1). The state presented no evidence establishing that March took an "affirmative action to elude detection by police[,]" such as leaving the jurisdiction or fleeing from the police when they showed up at his residence. Compare Cherry , 171 Ohio App.3d 375, 2007-Ohio-2133, 870 N.E.2d 808, at ¶ 22 ("It should have been clear to Cherry and Bates that the police urgently wanted to talk to them, and their acts of fleeing in a car at high speed, with no lights on, and then taking off in different directions on foot, are more than sufficient to constitute affirmative action to elude the police."). There was no evidence that March fled the jurisdiction: The Cleveland Municipal Court issued capias for March in Case No. 2016 CRB 9272, and March was found at his residence, which was in Cleveland and in the same jurisdiction from which the capias was issued, when he was arrested for the underlying conviction. Additionally, the state presented no evidence to show that March took any action to elude capture. In fact, the only evidence that the state presented regarding March's interaction with the officers was testimony saying that he was "rather uncooperative" and "reluctant" toward officers. Such alleged behavior, however, is certainly not sufficient to constitute "eluding" police.
{¶ 27} March also argues that the state failed to prove through sufficient evidence that he was aware that he was being sought by police or that he was aware of the misdemeanor bench warrant in his municipal court case. As the state points out, March appeared in court for that case on May 18, 2016. As a result of that hearing, the trial court set a misdemeanor arraignment hearing for June 1, 2016. The trial court's docket states that on May 19, 2016, the clerk issued a summons for March to his home address. The docket reflects that on June 6, 2016, however, that summons issued to March's home address was unclaimed. March failed to appear for the June 1, 2016 hearing, and the trial court issued a capias. The docket also reflects that a letter regarding the capias was to be processed and mailed to March on June 2, 2016. However, there are no subsequent journal entries establishing that that letter was actually sent and that March ever received it.
{¶ 28} Given the fact that we already found insufficient evidence to show that March eluded police as is required to be a fugitive from justice, we find that we are not required to determine whether the above is sufficient evidence to show that March was aware of the bench warrant and was being sought by police.
{¶ 29} Further, to the extent that the state argues that March's "evading his court appearance was sufficient[,]" we again, disagree. The definition of "fugitive from justice" as defined by the Second District and adopted by this court does not require that a defendant take an affirmative action to elude a court appearance; it requires eluding detection by police, who would be seeking a defendant on a capias. The state's interpretation cannot be reconciled with the definition of "fugitive from justice."
{¶ 30} In its appellate brief, the state cites to State v. Johnson , 128 Ohio St.3d 107, 2010-Ohio-6301, 942 N.E.2d 347, and argues that March did not need to be aware of his disability to be convicted under R.C. 2923.13(A)(1).
{¶ 31} In State v. Johnson , the Ohio Supreme Court considered whether " R.C. 2923.13(A)(3) requires proof of the mens rea of recklessness with respect to a defendant's prior conviction." Id. at ¶ 1. The court held that "for the offense of having weapons while under disability defined by R.C. 2923.13(A)(3), the state is not required to prove a culpable mental state for the element that a defendant is under indictment for or has been convicted of any offense involving a drug of abuse." Id. at ¶ 42. Put simply, the Ohio Supreme Court held that a defendant does not need to know that he is "disabled" and therefore cannot legally possess a weapon under R.C. 2923.13(A)(3) to be convicted of having weapons while under disability.
While Johnson analyzed whether knowledge of a disability was required for a conviction under R.C. 2923.13(A)(3), a number of appellate districts have extended Johnson 's holding to convictions under R.C. 2923.13(A)(1). See In re J.T. , 1st Dist. Hamilton, 2014-Ohio-5062, 21 N.E.3d 1136, ¶ 21 ; State v. Kortz , 2d Dist. Montgomery No. 25041, 2013-Ohio-121, 2013 WL 209150, ¶ 15.
{¶ 32} The state's reliance on Johnson is misplaced for a few reasons. First, Johnson did not redefine the term "fugitive from justice" and did not consider the sufficiency of evidence for that disability because the defendant in that case had a prior conviction and was convicted under R.C. 2923.13(A)(3), not (A)(1).
{¶ 33} Second, March does not argue and we do not find that his conviction should be reversed because the state failed to show that he did not know he was a fugitive from justice. Instead, the state failed to show that he was, in fact, a fugitive from justice in the first place. While knowledge of disability is not required under R.C. 2923.13(A)(1), to be a fugitive of justice (which is required under the statute), the defendant must know that he is being sought by police in connection with that offense and, being aware that he is being sought by police, take some affirmative action to elude detection by police. As March puts it, while the state "may not have been required to establish that any particular mens rea with respect to the alleged fugitive status, [it] was required to establish that the fugitive status actually existed." As discussed above, the state failed to show that March was actually a fugitive from justice. Therefore, March's conviction is reversed and vacated because the state failed to show that March was a fugitive from justice, not because March did not know that he was a fugitive from justice.
{¶ 34} Accordingly, we find insufficient evidence to support March's conviction and sustain March's first assignment of error. Based on our resolution of March's first assignment of error, his remaining assignments of error are moot.
{¶ 35} Judgment reversed, March's conviction for having weapons while under disability is vacated, and this case is remanded to the lower court for further proceedings consistent with this opinion.
SEAN C. GALLAGHER, J., and PATRICIA ANN BLACKMON, J., CONCUR