[Cite as State v. Santiago, 2011-Ohio-3058.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 95516



                                        STATE OF OHIO
                                                 PLAINTIFF-APPELLEE

                                                  vs.


                             ARCADIO F. SANTIAGO, JR.

                                                 DEFENDANT-APPELLANT



                                               JUDGMENT:
                                                AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-529881

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

        RELEASED AND JOURNALIZED: June 23, 2011
ATTORNEY FOR APPELLANT

Joseph Vincent Pagano
P.O. Box 16869
Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Carrie Heindrichs
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY EILEEN KILBANE, A.J.:

          {¶ 1} Defendant-appellant, Arcadio Flores Santiago, Jr. (Santiago), appeals from his

convictions for attempted murder and felonious assault.    For the reasons set forth below, we

affirm.

          {¶ 2} On October 16, 2009, Santiago was indicted for attempted murder in violation

of R.C. 2903.02(A), one count of felonious assault in violation of R.C. 2903.11(A)(1), and one

count of felonious assault in violation of R.C. 2903.11(A)(2), in connection with the August

29, 2009 stabbing of DeShawn Willis (Willis).     He pled not guilty and the matter proceeded

to a jury trial on June 9, 2010.
       {¶ 3} For its case, the State presented the testimony of Willis, his wife, Tracy

Patterson (Patterson), and Cleveland Metropolitan Housing Authority (CMHA) police officers

Marc Ortiz (Sergeant Ortiz), Ryan Allen (Officer Allen), and Stephen Kolb (Officer Kolb).

       {¶ 4} Willis testified that he, Patterson, and her children, ages 10, 9, and 6, live in a

CMHA unit, located at 2840 Central Avenue, in Cleveland.          The morning     of August 28,

2009, Willis visited his mother, who lives on Division Avenue.      Later, at around 7:00 p.m.,

he visited his aunt, who lives on St. Clair Avenue near East 190th Street.       Willis returned

home around 7:45 p.m.       At that time,   Santiago and his significant other, known as Hazel

Flores (Hazel), were there with the children.      Willis, Hazel, and Santiago drank beer and
               1




double shots of vodka while the children played upstairs.    According to Willis, Santiago had

marijuana, and he decided to go to the store to buy a cigarello, to use as a “shell” for smoking.

 Willis and Santiago walked to a nearby gas station and bought the cigarello.        When they

returned, they smoked the marijuana-filled cigarello, commonly referred to as a “blunt,” and

continued to drink.

       {¶ 5} Willis further testified that Santiago asked him if he knew anyone who could

sell them more marijuana.     A short time later, Santiago saw someone “that he was locked up

in jail with” and invited that individual and the people with him into the apartment.    A short

time later, Santiago and Willis made a second trip to the store to buy another cigarello.


      Hazel, a transgendered individual, is identified in the transcript as Felix
       1

Quinones.
When they returned, Hazel and one of the children informed them that the men had robbed

Hazel.

          {¶ 6} Hazel accused Willis of setting up the robbery, and Santiago began to threaten

Willis.    Santiago then called for someone to pick him up.         When his ride arrived, Willis

walked him and Hazel to the car.       According to Willis, Santiago drew near as if to shake his

hand, then stabbed him in the lower abdomen with a knife, a serrated four-inch blade.       Willis

ran away, and Santiago chased him, threatening to kill him.        Willis was taken to the hospital

by ambulance.      He required surgery and remained hospitalized for eight days.

          {¶ 7} Willis admitted on cross-examination that he is not listed as a tenant of the

CMHA premises.        He also admitted that he has a burglary conviction.

          {¶ 8} Patterson testified that Santiago is her cousin.   On August 28, 2009, she spoke

to him on the phone, and he indicated that he was going to his sister’s house.       Santiago then

asked if he and Hazel could instead come to her house, and she agreed.        They arrived around

4:00 p.m., and the group drank.      After a while, Patterson’s best friend came over and invited

her out.     The group subsequently agreed that Santiago and Hazel would stay with the

children, and Patterson would go out.      Later, after receiving a phone call asking her to return

home, Patterson observed that Willis had been stabbed.

          {¶ 9} Sergeant Ortiz testified that he went to Patterson’s apartment in response to a

call that someone had been stabbed.        At that time, Willis had been taken to MetroHealth
Medical Center.      Patterson advised Sergeant Ortiz that “Arcadio” and “Hazel” had been

invited to the unit, and one of them stabbed Willis after a dispute over money.        There was

no mention of a robbery prior to the stabbing however.

       {¶ 10} Sergeant Ortiz further testified that Hazel was still at the unit, but she declined

to speak with him.     Santiago was not at the scene.

       {¶ 11} Officer Allen testified that he arrived just as Willis was being transported to the

hospital.    Hazel was at the scene, but Santiago had left.    Officer Allen attempted to locate

Santiago, but he was unable to do so.

       {¶ 12} Officer Kolb testified that approximately one week after this incident, he spoke

with Willis and Patterson and obtained verbal statements from them.          Patterson stated that

Santiago had been at the unit, and Willis identified Santiago as his assailant.

       {¶ 13} Santiago elected to present evidence and offered the testimony of Felix

Quinones, a.k.a. Hazel.     Hazel testified that Patterson called Santiago and invited them to her

apartment.     They arranged for a ride and arrived at around 5:00 p.m.     The group sat around

and drank beer.    Around 8:00 p.m., another friend of Patterson’s arrived and invited her to go

out.   Patterson asked Santiago to stay there and watch her children, and he agreed to do so.

Before leaving, Patterson explained that Willis may come over and she asked them to let him

into the house.    Patterson then left.
          {¶ 14} According to Hazel, Willis arrived about ten minutes later.        Five minutes after

that, five other men arrived and Willis let them into the apartment.         Hazel stated that Willis

knew these men, and he spoke with them while she and Santiago spoke privately.             Willis then

asked Santiago to go to the store with him to buy more beer.        He agreed, but told Willis that

the five other men could not remain at the apartment while they were gone.              Willis agreed

and the men left.

          {¶ 15} Hazel testified that Willis watched as Santiago put money into her pocket.

Willis and Santiago then left to go to the store.    A few minutes later, the five men returned

and demanded money.           Two of the men grabbed Hazel and one of them pulled out a gun.

The men took the money and pushed her to the ground.          They left a short time later.

          {¶ 16} Hazel further testified that the police arrived, and she reported the robbery but

did not use her real name because she feared Willis.       They left at around midnight.

          {¶ 17} The   jury     subsequently   convicted    Santiago    of    all   offenses.      On

September 8, 2010, the trial court merged the three offenses and sentenced him to six years of

imprisonment, to be served consecutively to his three-year sentence imposed in an unrelated

matter.

          {¶ 18} Santiago now appeals, assigning five errors for our review.

          ASSIGNMENT OF ERROR ONE
       “Appellant was denied a fair trial when the trial court denied his request for a
       continuance to obtain testimony that would have impeached the credibility of
       the alleged victim.”

       {¶ 19} Within this assignment of error, Santiago complains that the trial court erred in

refusing to continue the matter in order to allow him to obtain testimony from the laboratory

analyst as to the results of a drug test that would have impeached Willis’s testimony that he

was smoking marijuana with defendant prior to the attack.

       {¶ 20} The grant or denial of a continuance is entrusted to the broad, sound discretion

of the trial court.   State v. Landrum (1990), 53 Ohio St.3d 107, 559 N.E.2d 710.             In

exercising that discretion, the trial court should consider the length of delay requested, prior

continuances, inconvenience, the reasons for the delay, whether the defendant contributed to

the delay, and other relevant factors.       Id.   The court may deny a continuance that is

requested as a trial tactic.   Id.   See, also, State v. Powell (1990), 49 Ohio St.3d 255, 259,

552 N.E.2d 191; State v. Unger (1981), 67 Ohio St.2d 65, 423 N.E.2d 1078.

       {¶ 21} In this case, the record indicates that on the second morning of trial, counsel for

Santiago advised the court that he had spoken to Santiago’s probation officer the previous

evening and learned that Santiago had passed a drug test taken on September 22, 2009.

According to counsel, these test results showed that Santiago had not used drugs in the 30 days

before the test, therefore impeaching Willis’s testimony that Santiago had smoked marijuana

immediately before the attack.       Counsel asked the court to allow admission of the negative
drug test, but to exclude evidence that Santiago is on probation.        Counsel also asked for a

continuance to identify the laboratory analyst who conducted the drug test.

       {¶ 22} The trial court subsequently noted that in Santiago’s January 14, 2010

competency and sanity evaluations, he stated that he had not smoked marijuana for

approximately two months prior to the incident.     The court additionally noted that the analyst

would be required to testify about the test, and that the State would be permitted to conduct a

voir dire of this witness prior to the court permitting any testimony.      At this point, defense

counsel informed the court that the toxicologist and the acting toxicologist were both on

vacation and asked for a continuance.    The trial court denied that request.

       {¶ 23} We find no abuse of discretion.     The length of the delay was uncertain.      The

reason for the delay, i.e., to corroborate that Santiago had not smoked marijuana, could have

been pursued at least six months prior to trial, when his drug history was referenced in his

competency and sanity evaluations.      Because the matter was raised on the second day of

testimony, it involved great inconvenience to the court.    Accordingly, the trial court did not

abuse its discretion in denying the mid-trial request for a continuance.

       {¶ 24} This assignment of error is without merit.

       ASSIGNMENT OF ERROR TWO

       “The trial court erred by denying Appellant’s motion for a mistrial where a
       witness improperly testified before the jury that defendant had been in jail and
       the trial court did not give the jury a limiting instruction * * * that may have
       diminished the prejudicial effect of this improper testimony.”
       {¶ 25} Santiago next complains that the trial court should have ordered a mistrial after

Willis twice stated in his direct testimony that Santiago let the group of men into the house

after he recognized one of them as “somebody that he was locked up in jail with.”

       {¶ 26} The grant or denial of an order of mistrial lies within the sound discretion of the

trial court. State v. Garner (1995), 74 Ohio St.3d 49, 656 N.E.2d 623.         An appellate court

will not disturb the exercise of that discretion absent a showing that the accused has suffered

material prejudice. State v. Sage (1987), 31 Ohio St.3d 173, 510 N.E.2d 343.            A mistrial

should be declared only when the ends of justice so require and a fair trial is no longer

possible. State v. Franklin (1991), 62 Ohio St.3d 118, 580 N.E.2d 1.        Where the request for

a mistrial is based upon a brief, isolated incident that does not involve prosecutorial

misconduct, the trial court is within its discretion in denying the motion for a mistrial.   Id.

       {¶ 27} Viewing this matter in its entirety, we find no abuse of discretion.            First,

Willis’s remarks were not solicited by the prosecuting attorney and were brief and isolated.

Moreover, with regard to the substance of the remarks, they do not establish that Santiago

committed any offense.      Although the court would have been well advised to provide a

curative instruction to the jury, we note that the court did instruct the jury that Santiago was

presumed innocent of the charges unless proven guilty beyond a reasonable doubt.                   We

conclude that the remarks did not deprive defendant of a fair trial and were harmless beyond a

reasonable doubt.
         {¶ 28} This assignment of error is without merit.

         ASSIGNMENT OF ERROR THREE

         “The trial court erred by giving a flight instruction to the jury over
         Appellant’s objection.”

         {¶ 29} Here Santiago asserts that the court’s flight instruction was erroneous because it

did not advise the jury that if they found that he left the scene for reasons other than a

consciousness of guilt then it should not consider evidence of his departure for any purpose.

He further complains that a flight instruction was not warranted in this matter because he did

not flee, but rather left the scene after reporting the robbery to CMHA police.

         {¶ 30} As an initial matter, we review a trial court’s issuance of a jury instruction for

an abuse of discretion. State v. Williams, Cuyahoga App. No. 90845, 2009-Ohio-2026.

Further, jury instructions are reviewed in their entirety to determine if they contain prejudicial

error.    State v. Fields (1984), 13 Ohio App.3d 433, 436, 469 N.E.2d 939.            Flight from

justice may be indicative of a consciousness of guilt. State v. Taylor, 78 Ohio St.3d 15, 27,

1997-Ohio-243, 676 N.E.2d 82.       However, “a mere departure from the scene of the crime is

not to be confused with a deliberate flight from the area in which the suspect is normally to be

found.”    State v. Norwood (Sept. 30, 1997), Lake App. Nos. 96-L-089 and         96-L-090.

         {¶ 31} With regard to the form of the instruction, we note that in this matter, the court

instructed the jury as follows:
       “There may be evidence in this case to indicate that the defendant fled from
       the scene of the crime. Flight does not in and of itself raise the presumption
       of guilt but it may show consciousness of guilt or a guilty connection with a
       crime. If you find the defendant did flee from the scene of the crime, you
       may consider this circumstance in your consideration of the guilt or innocence
       of the defendant.”

       {¶ 32} As to the court’s failure to include language in the instruction advising the jury

not to consider evidence of Santiago’s departure from the scene if they find that it was not

motivated by consciousness of guilt, we note that in State v. Stokes, Mahoning App. No.

08-MA-39, 2009-Ohio-4820, the court rejected this same contention.            In Stokes, which

involved the same instruction given herein, the court held that the trial court did not abuse its

discretion in failing to additionally charge the jury to consider other motives for departing the

scene or to disregard evidence of the accused’s departure, and noted that the instruction that

the court gave is an accurate statement of the law, taken verbatim from the Ohio Supreme

Court’s decision in State v. Eaton (1969), 19 Ohio St.2d 145, 160, 249 N.E.2d 897, vacated on

other grounds (1972), 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 750; holding reaffirmed in

State v. Williams, 79 Ohio St.3d 1, 11, 1997-Ohio-407, 679 N.E.2d 646.        See, also, State v.

Wright, Cuyahoga App. No. 92344, 2009-Ohio-5229 (trial counsel not ineffective for failing

to request this additional language in flight instruction).   Cf. State v. Lozada, Cuyahoga

App. No. 94902, 2011-Ohio-823 (no error where the court’s oral charge to the jury failed to

contain this additional language but the written charge did contain this language).
       {¶ 33} In this matter, the court’s instruction also tracks the language of Eaton and is an

accurate statement of law.      Moreover, the given instruction is identical to an instruction

approved by this court in State v. Hamilton, Cuyahoga App. No. 86520, 2006-Ohio-1949.

The court’s instruction informed the jury that “[i]f you find the defendant did flee from the

scene of the crime, you may consider this circumstance in your consideration of the guilt or

innocence,” so it did apprise the jury to consider whether there had been more than a mere

departure from the scene.    (Emphasis added.)    The form of the instruction was not an abuse

of discretion.

       {¶ 34} As to whether the instruction was warranted herein, we note that in State v.

Villa, Lorain App. No. 05CA008773, 2006-Ohio-4529, the court held that the trial court did

not abuse its discretion in giving a flight instruction where the evidence established that

defendant departed the scene, was sought for questioning about the crime, and could not be

located.

       {¶ 35} In this matter, there was evidence that while Hazel remained at the scene,

Santiago left immediately and the officers could not locate him.         We find no abuse of

discretion viewing the record in its entirety.

       ASSIGNMENT OF ERROR FOUR

       “Appellant’s convictions are against the manifest weight of the evidence.”
      {¶ 36} In determining whether a conviction is against the manifest

weight of the evidence, the appellate court sits as a “thirteenth juror” and

disagrees with the factfinder’s resolution of the conflicting testimony. State

v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 54, citing

Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652. The

reviewing court must examine the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and determine

whether the jury “clearly lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial ordered.” Id.,

quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.

      {¶ 37} The appellate court may not merely substitute its view for that of

the jury, and reversal on manifest weight grounds is reserved for “the

exceptional case in which the evidence weighs heavily against the conviction.”

 Id., quoting Martin.

      {¶ 38} In this matter, after examining the entire record, weighing the

evidence and all reasonable inferences, we are unable to conclude that the

jury clearly lost its way and created such a manifest miscarriage of justice in

convicting defendant of the offenses of attempted murder and felonious

assault. The State’s evidence demonstrated that upon returning from the

store with Willis and learning that Hazel had been robbed of money by

Willis’s friends, Santiago became enraged and began to threaten Willis. As
Willis was walking him out, Santiago drew near as if to shake Willis’s hand, then

stabbed him in the lower abdomen and continued to chase and threaten him. Santiago’s

evidence indicated that Hazel called the police to report the robbery, and the defense suggested

that other individuals had stabbed Willis after Santiago left.   It is certain, however, that the

police and EMS responded to the scene due to a stabbing, however, and not due to a robbery,

and that Willis had already been stabbed by the time the police arrived. The convictions

are not against the manifest weight of the evidence.

       {¶ 39} The fourth assignment of error is without merit.

       ASSIGNMENT OF ERROR FIVE

       “The trial court’s imposition of consecutive sentences is
       contrary to law and an abuse of discretion.”

       {¶ 40} Within this assignment of error, Santiago asserts that Oregon v. Ice, (2009), 555

U.S. 160, 129 S.Ct.711, 172 L.Ed.2d 517, retroactively reinstates the consecutive-sentencing

statutes requiring factfinding that were excised in State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470, so the trial court was required to make findings of fact in

order to sentence defendant to a term of imprisonment which was to be served consecutively

to the sentence imposed in another matter.     He further asserts that the sentence imposed is

disproportionate to the offense and is inconsistent with the sentence imposed for similar crimes

committed by similar offenders.
       {¶ 41} In State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d

768, the Ohio Supreme Court recently addressed this argument and held that

Ice   “does    not    revive    Ohio’s     former     consecutive-sentencing         statutory

provisions,      R.C. 2929.14(E)(4)        and      2929.41(A),       which      were      held

unconstitutional in Foster. Trial court judges are not obligated to engage in

judicial fact-finding prior to imposing consecutive sentences unless the

General Assembly enacts new legislation requiring that findings be made.”

Id. at paragraphs two and three of the syllabus. Therefore, post-Foster, “trial

courts have full discretion to impose a prison sentence within the statutory

range and are no longer required to make findings and give reasons for

imposing maximum, consecutive or more than the minimum sentence.”

State v. Kalish, 120 Ohio St.3d 23, 25, 2008-Ohio-4912, 896 N.E.2d 124.

       {¶ 42} As to Santiago’s additional claims regarding proportionality and consistency,

we note that he did not challenge the proportionality of his sentence or the consistency of it as

compared to other similar offenders in the court below, therefore, he has waived this issue.

State v. Lycans, Cuyahoga App. No. 93480, 2010-Ohio-2780.

       {¶ 43} In this matter, the court complied with the applicable rules and statutes, so

the sentence is not clearly and convincingly contrary to law, and the court did not abuse its

discretion.   At the sentencing hearing, the trial court noted that Santiago had three

prior offenses, that rehabilitation efforts and measures to treat his mental
illness were unsuccessful, and that his behavior had repeatedly put others at

risk.

        This assignment of error is without merit.

        Judgment affirmed.

        It is ordered that appellee recover from appellant 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. The defendant’s

convictions having been affirmed, any bail pending appeal is terminated.




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

Rule 27 of the Rules of Appellate Procedure.




MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

FRANK D. CELEBREZZE, JR., J., and
SEAN C. GALLAGHER, J., CONCUR
