[Cite as State v. Pierce, 2017-Ohio-8578.]


                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 105389




                                             STATE OF OHIO

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                             JOHNNIE PIERCE

                                                         DEFENDANT-APPELLANT




                                        JUDGMENT:
                             AFFIRMED IN PART, MODIFIED IN PART,
                                      AND REMANDED




                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-15-596666-A

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

        RELEASED AND JOURNALIZED: November 16, 2017
ATTORNEY FOR APPELLANT

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


ATTORNEYS FOR APPELLEE

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
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 form under R.C. 2945.75(A),

and found that the alleged defect in the jury verdict was not plain error based on other

circumstances during the proceedings.”      State v. Kilbane, 8th Dist. Cuyahoga No. 99485,

2014-Ohio-1228, ¶ 17. The court looked beyond the jury verdict form and considered the

whole record. Although the jury verdict form did not state the degree of the drug possession
offense or the aggravating circumstance, the court held that the alleged defect in the jury verdict

form did not constitute plain error because (1) the indictment charged the defendant with

possessing cocaine, (2) the verdict form reflected a finding of guilty as charged in the indictment,

(3) the evidence presented at trial only related to possession of cocaine, and (4) the trial court

instructed the jury that it could not find the defendant guilty of drug possession unless it found

the drug involved to be cocaine. Eafford at ¶ 17.

       {¶18} In the instant matter, the state argues that the additional element — that Pierce

committed the escape offense while the most serious offense for which he was under detention

was a felony of the third, fourth, or fifth degree — was alleged in the indictment and the jury

verdict form reflected a finding of guilty “as charged in Count Three of [the] indictment.”

Furthermore, the state contends that the evidence presented at trial established that Pierce had

been detained for vandalism, a fifth-degree felony, at the time he committed the escape offense.

Officer Davis testified that Pierce was detained for vandalizing the apartment door’s glass

window, a fifth-degree felony. (Tr. 292, 304.) Finally, the state emphasizes that the trial court

instructed the jury that it could not find Pierce guilty of escape unless it found that he committed

the offense while under detention for a third-, fourth-, or fifth-degree felony.

       {¶19} The state does not address the effect of the Ohio Supreme Court’s most recent

pronouncement on the issue of compliance with R.C. 2945.75(A)(2) in State v. McDonald, 137

Ohio St.3d 517, 2013-Ohio-5042, 1 N.E.3d 374. In McDonald, the court made clear that “in

cases involving offenses for which the addition of an element or elements can elevate the offense

to a more serious degree, the verdict form itself is the only relevant thing to consider in

determining whether the dictates of R.C. 2945.75 have been followed.” (Emphasis added.) Id.

at ¶ 17, citing Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, at ¶ 14. The court
emphasized that “we look only to the verdict form signed by the jury to determine whether,

pursuant to R.C. 2945.75, [the defendant] was properly convicted of a third-degree felony.”

(Emphasis added.) McDonald at ¶ 18. The court further explained,

         “[t]he express requirement of [R.C. 2945.75(A)(2)] cannot be fulfilled by
         demonstrating additional circumstances, such as that the verdict incorporates the
         language of the indictment, or by presenting evidence to show the presence of the
         aggravated element at trial or incorporation of the indictment into the verdict
         form[.]”
Id. at ¶ 17, quoting Pelfrey at ¶ 14.

       {¶20} This court has recognized that Pelfrey, Eafford, and McDonald provide

“conflicting guidance” regarding the application of R.C. 2945.75(A)(2). Kilbane, 8th Dist.

Cuyahoga No. 99485, 2014-Ohio-1228, at ¶ 17. In Kilbane, this court attempted to reconcile

the three holdings.     This court applied the strict compliance analysis from Pelfrey and

McDonald, and concluded that the jury verdict forms contain “a statement of the additional

element to justify convicting Kilbane of the greater degree of the offense” and “‘further findings’

that expressly required the jury to find that the aggravating element was present.” Id. at ¶

15-16. Furthermore, this court applied the plain error analysis from Eafford, and concluded that

even if the jury verdict forms were defective, they did not constitute plain error.   Id. at ¶ 19.

       {¶21} In the instant matter, the jury verdict form fails under a strict compliance analysis.

The jury verdict form did not state the degree of the escape offense, nor did it state the most

serious offense for which Pierce was under detention when he committed the escape offense.

       {¶22} After reviewing the record, we find this case to be distinguishable from Eafford.

       The charge in Eafford, possession of cocaine, did not involve any additional

       elements that elevated the level of the offense. The verdict form described the

       offense as “possession of drugs,” but the only drug involved was cocaine.
       Therefore, possession of cocaine was necessarily what the jury found the

       defendant guilty of.

State v. Melton, 2013-Ohio-257, 984 N.E.2d 1112, ¶ 31 (8th Dist.).

       {¶23} Here, the escape charge involved an additional element — that Pierce committed

the offense while under detention for a third-, fourth-, or fifth-degree felony — that elevated the

level of the offense from a fifth-degree felony to a third-degree felony. Furthermore, as noted

above, Pierce had been detained for multiple offenses at the time he committed the escape

offense.

       {¶24} Based on the foregoing analysis, we find the mandates of McDonald and Pelfrey to

be controlling.   As such, we consider only the verdict form itself in determining whether there

was compliance with R.C. 2945.75.      Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d

735, at ¶ 14; McDonald, 137 Ohio St.3d 517, 2013-Ohio-5042, 1 N.E.3d 374, at ¶ 17. It is

evident that the dictates of the statute were not followed. The jury verdict form did not state the

degree of the escape offense, nor did it state the most serious offense for which Pierce was under

detention when he committed the escape offense.

       {¶25} Accordingly, Pierce’s conviction for escape should be reduced to a fifth-degree

felony in order to conform to the jury’s verdict form. Pierce’s first assignment of error is

sustained.
                                      B. Batson Challenge

       {¶26} In his second assignment of error, Pierce, who is African American, argues that his

constitutional rights were violated when the trial court allowed the state to peremptorily excuse

prospective Juror 61 over defense counsel’s Batson objection. We disagree.

       {¶27} In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the

United States Supreme Court limited the prosecution’s discretion in the use of peremptory

challenges during jury selection. The court held that purposeful discrimination in the use of

peremptory challenges to exclude members of a minority group violates the Equal Protection

Clause of the United States Constitution.   Id. at 89.

       {¶28} The court developed a three-part test for trial courts to apply when adjudicating a

Batson challenge:

       First, a defendant must make a prima facie case that the prosecutor is engaged in
       racial discrimination. Id. at 96-97. Second, if the defendant satisfies that
       burden, the prosecutor must provide a racially neutral explanation for the
       challenge. Id. at 97-98. Finally, the court must decide, based on all the
       circumstances, whether the defendant has proved purposeful racial discrimination.
        Id. at 98. In doing so, the court must consider the circumstances of the
       challenge and assess the plausibility of the prosecutor’s explanation in order to
       determine whether it is merely pretextual.

State v. Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, ¶ 21, citing Miller-El v.

Cockrell, 537 U.S. 322, 339, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); State v. Frazier, 115 Ohio

St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 65.

       “A trial court’s finding of no discriminatory intent will not be reversed on appeal
       unless clearly erroneous.”         State v. Pickens, 141 Ohio St.3d 462,


       1  Prospective Juror 6’s nationality and race are unclear from the record. Defense counsel
suggested that she is African American; the trial court opined that she is Latin American; and the
prosecutor opined that she is Hispanic.
       2014-Ohio-5445, 25 N.E.3d 1023, ¶ 64, citing State v. Frazier, 115 Ohio St.3d
       139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 64. This deferential standard arises
       from the fact that step three of the Batson inquiry turns largely on the evaluation
       of credibility by the trial court. See State v. Herring, 94 Ohio St.3d 246, 257,
       2002-Ohio-796, 762 N.E.2d 940, citing Batson, 476 U.S. at 98, 106 S.Ct. 1712,
       90 L.Ed.2d 69.

State v. Murray, 8th Dist. Cuyahoga No. 102779, 2016-Ohio-107, ¶ 22.

       {¶29} In the instant matter, following the state’s use of its first peremptory challenge to

remove prospective Juror 6, defense counsel raised a Batson challenge, explaining, “I’m

suggesting that this was a preemptive strike based on race. This young lady was a woman of

color. My client is a person of color, and I believe that it is no longer necessary to show a

pattern where there is no rational basis for excluding a juror, and I don’t see that there was a

rational basis for excluding this juror number 6.” (Tr. 170.)

       {¶30} The trial court noted that it was unclear whether prospective Juror 6 was African or

Latin American.    Nevertheless, the trial court reviewed the three-part test set forth in Batson

with the parties and provided the state with an opportunity to respond.

       {¶31} In response to defense counsel’s Batson challenge, the prosecutor noted that he was

also a person of color and that there were still “numerous persons of color” on the jury.     (Tr.

170.) The prosecutor argued that defense counsel failed to make a prima facie case that the

state engaged in racial discrimination based on the fact that both the parties and the trial court

were unable to determine the nationality or race of prospective Juror 6. The prosecutor opined

that prospective Juror 6 was Hispanic rather than African American.

       {¶32} The trial court inquired as to whether the state had a race-neutral reason for

removing the juror. The prosecutor provided the following reasons for excusing prospective

Juror 6:
        There are a number of reasons. One of the reasons is that during the state’s
        initial questioning of the panel, juror number 6 would not make eye contact with
        the State of Ohio.

        Additionally, during the court’s examination of the witness, the State of Ohio
        noted that juror number 6 did not like to make eye contact with the court, and was,
        in general, just not involved in the process and showed a demeanor that she did
        not want to be present or participate.

        Further, your Honor, on the State of Ohio’s questioning during the voir dire, juror
        number 6 did indicate that both of her parents were in jail at some point on drug
        charges.

        And so when juror number 6 elucidated those facts, it kind of clarified for the
        State of Ohio the feeling of mistrust there was that the State of Ohio was getting
        from her.

(Tr. 174-175.)

        {¶33} The trial court rejected defense counsel’s Batson challenge based on the

prosecution’s explanation of its basis for excusing prospective Juror 6. The trial court noted on

the record that the juror who replaced prospective Juror 6 was also an African American female.



        {¶34} Pierce appears to argue that the state failed to provide a race-neutral explanation to

exclude prospective Juror 6. Furthermore, Pierce emphasizes that although prospective Juror

6’s parents had been charged with drug-related offenses in the past, she indicated that her

parents’ experiences would not affect her ability to be fair to the prosecution or the defense.

(Tr. 75.)

        {¶35} After reviewing the record, we cannot say that the trial court’s denial of defense

counsel’s Batson challenge was clearly erroneous. After defense counsel objected to the state’s

removal of prospective Juror 6, the trial court thoroughly reviewed the Batson three-part test and

gave the prosecution an opportunity to provide its reasons for excusing the juror.             The
prosecutor provided permissible race-neutral justifications for exercising its peremptory

challenge. In denying defense counsel’s Batson challenge, the trial court evidently concluded

that Pierce failed to prove purposeful racial discrimination. Accordingly, we defer to the trial

court’s resolution of defense counsel’s Batson challenge.

       {¶36} Pierce’s second assignment of error is overruled.

                                C. Intoxication Jury Instruction

       {¶37} In his third assignment of error, Pierce argues that his due process rights were

violated when the trial court did not sua sponte provide the jury with an instruction on

intoxication.

       {¶38} A “trial court has discretion to determine whether the evidence is sufficient to

require a jury instruction on intoxication.”   State v. Nields, 93 Ohio St.3d 6, 22, 752 N.E.2d 859

(2001), citing State v. Wolons, 44 Ohio St.3d 64, 541 N.E.2d 443 (1989).             “Although an

appellate court normally reviews alleged errors in jury instructions for an abuse of discretion,

when a defendant does not request a specific jury instruction and fails to object to the jury

instructions as given, he waives all but plain error.” State v. Robinson, 8th Dist. Cuyahoga No.

102766, 2016-Ohio-808, ¶ 9, citing State v. Edgerson, 8th Dist. Cuyahoga No. 101283,

2015-Ohio-593, ¶ 15.

       {¶39} Pursuant to Crim.R. 52(B), appellate courts may notice a plain error affecting a

substantial right even though it was not brought to the attention of the trial court. An error only

rises to the level of plain error if but for the error, the outcome of the proceedings would have

been different. State v. Harrison, 122 Ohio St.3d 512, 2009-Ohio-3547, 912 N.E.2d 1106, ¶ 61;

State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978). “Notice of plain error under

Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only
to prevent a manifest miscarriage of justice.” Long at id.

       {¶40} Pierce argues that the trial court should have provided an instruction on

intoxication to the jury based on the officers’ testimony that Pierce was intoxicated.        Pierce

acknowledges that voluntary intoxication is not a defense to the crimes with which he was

charged. However, he asserts that the jury should have been instructed on intoxication pursuant

to R.C. 2901.21(E), governing criminal liability and culpability, which provides, in relevant part,

that “[e]vidence that a person was voluntarily intoxicated may be admissible to show whether or

not the person was physically capable of performing the act with which the person is charged.”

       {¶41} This court has held that a defendant may not receive a jury instruction when the

instruction is inconsistent with the theory of the defense. State v. Rose, 8th Dist. Cuyahoga No.

89457, 2008-Ohio-1262, ¶ 18, citing State v. King, 20 Ohio App.3d 62, 64, 484 N.E.2d 234 (1st

Dist.1984), and State v. Catlin, 56 Ohio App.3d 75, 79, 564 N.E.2d 750 (2d Dist.1990).

       {¶42} In the instant matter, defense counsel’s theory at trial was that Pierce was not under

arrest when he was taken to the hospital for treatment, and thus, he could not have committed the

offense of escape. At no point did the defense argue or suggest that Pierce was intoxicated to

the point that he was physically incapable of committing the felonious assault, vandalism, escape,

assault, harassment by inmate, and resisting arrest offenses with which he was charged.

       {¶43} Furthermore, we cannot say that the record contains sufficient evidentiary support

to warrant a jury instruction on intoxication. It is undisputed that Pierce was intoxicated on the

night in question. Although Pierce told the officers that he needed a wheelchair when he was

leaving the hospital, Officer Petitt testified that Pierce “had walked [into the hospital] on his own

free will, unassisted. (Tr. 346.) Officer Davis testified that he was “in awe” and “taken

aback” by the high rate of speed at which Pierce was running from the officers. (Tr. 296-297.)
       {¶44} Based on the foregoing analysis, we cannot say that the trial court committed plain

error by failing to provide the jury with an instruction on intoxication. Accordingly, Pierce’s

third assignment of error is overruled.

                                           D. Sufficiency

       {¶45} Although the caption of Pierce’s fourth assignment of error alleges a due process

violation, it is evident that he is raising a challenge to the sufficiency of the evidence supporting

his convictions for harassment by inmate.

       {¶46} The test for sufficiency requires a determination of whether the prosecution met its

burden of production at trial.            State v. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, ¶ 12. The relevant inquiry is whether, after viewing the evidence in a light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.         State v. Thompkins, 78 Ohio St.3d

380, 386, 678 N.E.2d 541 (1997).

       {¶47} Pierce was convicted of harassment by inmate in violation of R.C. 2921.38(B),

which provides,

       [n]o person, with intent to harass, annoy, threaten, or alarm a law enforcement
       officer, shall cause or attempt to cause the law enforcement officer to come into
       contact with blood, semen, urine, feces, or another bodily substance by throwing
       the bodily substance at the law enforcement officer, by expelling the bodily
       substance upon the law enforcement officer, or in any other manner.

       {¶48} In support of his sufficiency challenge, Pierce argues that there was no evidence

that he intended to harass, annoy, threaten, or alarm the officers. He appears to suggest that the

transfer of blood was accidental or incidental rather than deliberate. Furthermore, Pierce argues

that the state failed to prove that the blood on Officers Petitt and Hoover belonged to him.

       {¶49} The record reflects that the state presented sufficient evidence to support Pierce’s
convictions. First, Officer Davis testified that Pierce was spitting at the officers. (Tr. 301.)

Officer Davis asserted that Pierce had blood in his mouth. Officer Davis testified that Officer

Hoover “was spitted [sic] upon; bodily contamination.” (Tr. 303.) As a result of Pierce’s

conduct, officers placed a spit bag on Pierce.

       {¶50} Second, Officer Petitt testified that Pierce “began to bite and spit at both Officer

Hoover and I.” (Tr. 355.) Officer Petitt explained, “[w]hen we were able to gain control of

[Pierce’s] hands, he then turned and started biting at us, and spitting saliva and blood and

anything else he could do to try to hit us or hurt us.” (Tr. 356.) Officer Petitt stated that Pierce

“spat several times,” and that Pierce was spitting purposefully. He testified that blood came

from Pierce’s mouth. Officer Petitt asserted that he was contacted by Pierce’s spit and blood.

Officers placed a spit mask on Pierce.

       {¶51} Third, Officer Hoover testified that a spit mask was placed on Pierce because he

was spitting on him and Officer Petitt. Officer Hoover confirmed that he was hit by Pierce’s

spit, and that the spit got on his uniform.

       {¶52} The testimony of Officers Davis, Petitt, and Hoover, if believed, is sufficient to

establish that Pierce caused the officers to come into contact with his blood by expelling the spit

and blood in his mouth upon the officers. Accordingly, Pierce’s convictions for harassment by

an inmate are supported by sufficient evidence.

       {¶53} Pierce’s fourth assignment of error is overruled.

                                              III. Conclusion

       {¶54} After thoroughly reviewing the record, we find that the jury’s verdict form for the

escape offense failed to comply with R.C. 2945.75 because it did not state the degree of the

offense nor state that an aggravating element was found. Thus, we reduce Pierce’s escape
conviction to a fifth-degree felony. The trial court’s sentence for third-degree felony escape is

vacated, and the matter is remanded to the trial court for the limited purpose of resentencing

Pierce on the fifth-degree felony escape conviction.

       {¶55} We affirm the trial court’s judgment in all other respects. We cannot say that the

trial court’s ruling denying defense counsel’s Batson challenge was clearly erroneous. The trial

court did not commit plain error by failing to provide the jury with an intoxication instruction.

Pierce’s convictions for harassment by inmate are supported by sufficient evidence.

       {¶56} Judgment affirmed in part, modified in part, and remanded to the lower court for

further proceedings consistent with this opinion.

       It is ordered that appellant and appellee share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

KATHLEEN ANN KEOUGH, A.J., and
SEAN C. GALLAGHER, J., CONCUR
