[Cite as State v. Wilson, 2010-Ohio-2294.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY



STATE OF OHIO,                                            CASE NO. 1-09-64

   PLAINTIFF-APPELLEE,

  v.

DESMOND J. WILSON,                                             OPINION

   DEFENDANT-APPELLANT.



                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR 2009 0286

                                      Judgment Affirmed

                              Date of Decision: May 24, 2010




APPEARANCES:

        Destiny R. Slaughterbeck, Appellant

        Samuel D. Patry, for Appellee
Case No. 1-09-64



Rogers, J.

       {¶1} Defendant-Appellant, Desmond Wilson, appeals from the judgment

of the Court of Common Pleas of Allen County convicting him of one count of

discharging a firearm into an occupied structure, one count of felonious assault

with a firearm specification, and one count of having weapons while under

disability, and sentencing him to a twenty-year prison term. On appeal, Wilson

argues that the trial court abused its discretion in instructing the jury on

consciousness of guilt where there was insufficient evidence to support the

instruction. Based on the following, we affirm the judgment of the trial court.

       {¶2} In October 2009, the Allen County Grand Jury indicted Wilson on

Count One: discharging a firearm into an occupied structure in violation of R.C.

2923.161(A)(1), a felony of the second degree; Count Two: felonious assault in

violation of R.C. 2903.11(A)(2), a felony of the second degree, with a firearm

specification pursuant to R.C. 2941.145(A); and, Count Three: having weapons

while under disability, a felony of the third degree. The indictment arose from an

incident during which Wilson fired several shots at Brenda Brown in retaliation

for her son’s testimony in Wilson’s brother’s bank robbery trial. Subsequently,

Wilson entered a plea of not guilty to all counts in the indictment.

       {¶3} In November 2009, the case proceeded to trial, at which Patrolman

George Caldwell testified that, on September 3, 2009, he received an order to



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serve an arrest warrant on Wilson based on his involvement in the Brown

shooting; that, when he arrived at Wilson’s residence, Wilson was sitting on the

porch; that he informed Wilson he was under arrest, and Wilson began to run

away; that he said to Wilson, “stop-police”, several times as he ran (trial tr., p.

123); that, at no point did he inform Wilson of the basis for his arrest or show him

the arrest warrant; that, after he apprehended Wilson, and while he walked Wilson

back to the police cruiser, Wilson stated, “I didn’t shoot at nothing” (id.); that this

statement was unsolicited; and, that Wilson’s arrest warrant was also for charges

unrelated to the Brown shooting, including obstructing official business and

failure to appear.

       {¶4} Subsequently, the State rested its case and requested a consciousness

of guilt jury instruction, to which Wilson objected, arguing that insufficient

evidence was presented to warrant the instruction and that the instruction would

prejudice his case.     The trial court granted the State’s request for the jury

instruction and instructed the jury, in pertinent part, as follows:

       Now, testimony has been admitted indicating that the defendant
       resisted arrest. You are instructed that defendant’s running
       alone does not raise a presumption of guilt, but it may tend to
       indicate the defendant’s consciousness or awareness of guilt. If
       you find that the facts do not support that the defendant resisted
       arrest, 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 consider this
       evidence for any purpose. However, if you find that the facts
       support that the defendant engaged in such conduct, and if you
       decide the defendant was motivated by a consciousness or an


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       awareness of guilt, you may, but are not required to, consider
       that evidence in deciding whether the defendant is guilty of the
       crimes charged. You alone will determine what weight, if any, to
       give to this evidence.

(Id. at 173-174).

       {¶5} Subsequently, the jury convicted Wilson on all three counts in the

indictment, including the firearm specification in Count Two. The trial court

immediately proceeded to sentencing, ordering Wilson to serve a six-year prison

term on Count One, a six-year prison term on Count Two, with an additional

three-year prison term for the firearm specification, and a five-year prison term on

Count Three, all to be served consecutively to each other, for a total twenty-year

prison term.

       {¶6} It is from his conviction and sentence that Wilson appeals,

presenting the following assignment of error for our review.

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
       INSTRUCTED THE JURY ON CONSCIOUSNESS OF GUILT.

       {¶7} In his sole assignment of error, Wilson argues that the trial court

erred in instructing the jury on consciousness of guilt. Specifically, he contends

that insufficient evidence was presented at trial to warrant such an instruction. We

disagree.

       {¶8} A trial court’s decision to give a jury instruction is within its

discretion, and we will not reverse such a decision absent an abuse of that

discretion. State v. Lightner, 3d Dist. No. 6-09-02, 2009-Ohio-4443, ¶11, citing


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State v. Guster (1981), 66 Ohio St.2d 266, 271. An abuse of discretion connotes

more than an error of law or judgment and implies that the trial court acted

unreasonably, arbitrarily, or unconscionably. State v. Nagle (2000), 11th Dist. No.

99-L-089, 2000 WL 777835, citing Blakemore v. Blakemore (1983), 5 Ohio St.3d

217, 219. When applying an abuse of discretion standard, a reviewing court may

not simply substitute its judgment for that of the trial court. Id.

       {¶9} ‘“It is to-day universally conceded that the fact of an accused’s

flight, escape from custody, resistance to arrest, concealment, assumption of a

false name, and related conduct, are admissible as evidence of consciousness of

guilt, and thus of guilt itself.’” State v. Eaton (1969), 19 Ohio St.2d 145, 160,

reversed in part on other grounds as stated by Eaton v. Ohio (1972), 408 U.S. 935,

quoting 2 Wigmore, Evidence (3 Ed.), 111, Section 276. Accordingly, a jury

instruction on consciousness of guilt based upon the flight of the accused is

appropriate when supported by sufficient evidence in the record. See State v.

Jeffries, 182 Ohio App.3d 459, 2009-Ohio-2440, ¶80, citing State v. Davilla, 9th

Dist. No. 03CA008413, 2004-Ohio-4448, ¶12. This Court has previously found a

consciousness of guilt instruction to be proper where a defendant boarded up his

back door and hid in a crawl space when the police came to his home to execute a

search warrant, State v. McCullough, 3d Dist. No. 12-07-09, 2008-Ohio-3055;

and, where a defendant ran and hid in between some apartment buildings when he




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saw a police cruiser searching the area in response to a dispatch call about shots

being fired, State v. Ingram, 3d Dist. No. 1-08-53, 2009-Ohio-1302.

       {¶10} Here, Patrolman Caldwell testified that Wilson took off running

when he approached Wilson’s residence and informed Wilson that he was under

arrest; that Wilson ran despite not being informed of the reason for the arrest; that

he never told Wilson the basis for the arrest warrant; that the warrant was also

based upon charges unrelated to the Brown shooting, including obstructing official

business and failure to appear; and, that, as he was walking Wilson to the patrol

car, Wilson made the unsolicited statement that he “didn’t shoot at nothing.”

(Trial Tr., p. 123). Although Wilson argues that his flight could have been due to

his knowledge of other bases for the arrest warrant, and that he could have made

the statement about the shooting because he lives in close proximity to Brown’s

residence and was aware of the shooting, these arguments only serve to

demonstrate reasons the jury could find that his flight was not evidence of

consciousness of guilt, not that a consciousness of guilt instruction was

unwarranted.    There was clearly sufficient evidence to allow a reasonable

inference that Wilson’s flight, coupled with his subsequent comment to Patrolman

Caldwell, indicated a consciousness of guilt such that a jury instruction on the

issue was not an abuse of discretion by the trial court. We also note that the trial

court’s consciousness of guilt jury instruction mirrored the instruction as set forth

in Ohio Jury Instructions (2009), Section CR 409.13(1), was clearly neutral in its


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effect, and only permitted, not required, the jury to draw the conclusion that

Wilson displayed a consciousness of guilt by fleeing the police.

       {¶11} Accordingly, we overrule Wilson’s assignment of error.

       {¶12} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J., and PRESTON, J., concur.

/jnc




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