[Cite as State v. Taylor, 2010-Ohio-1551.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                 )    CASE NO. 08 MA 122
                                              )
        PLAINTIFF-APPELLEE                    )
                                              )
VS.                                           )    OPINION
                                              )
EDWARD TAYLOR                                 )
                                              )
        DEFENDANT-APPELLANT                   )

CHARACTER OF PROCEEDINGS:                          Criminal Appeal from the Court of
                                                   Common Pleas of Mahoning County,
                                                   Ohio
                                                   Case No. 08 CR 78

JUDGMENT:                                          Affirmed.

APPEARANCES:
For Plaintiff-Appellee:                            Atty. Paul J. Gains
                                                   Mahoning County Prosecutor
                                                   Atty. Ralph M. Rivera
                                                   Assistant Prosecuting Attorney
                                                   21 West Boardman Street, 6th Floor
                                                   Youngstown, Ohio 44503

For Defendant-Appellant:                           Atty. Timothy Young
                                                   Ohio Public Defender
                                                   Atty. Melissa M. Prendergast
                                                   Assistant Ohio Public Defender
                                                   Office of the Ohio Public Defender
                                                   250 East Broad Street, Suite 1400
                                                   Columbus, Ohio 43215

JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro

Dated: March 29, 2010
                                                                                   -2-


WAITE, J.


       {¶1}   Appellant, Edward Taylor, appeals his jury conviction in the Mahoning

County Court of Common Pleas on two counts of felonious assault, in violation of

R.C. 2903.11(A)(2), (D), felonies of the first degree, with accompanying firearms

specifications, pursuant to R.C. 2941.145(A). Appellant was sentenced to eight-year

prison terms on each count of felonious assault to be served concurrently. The trial

court merged the firearms specifications and imposed a consecutive three-year

sentence, for an aggregate sentence of eleven years in prison.

       {¶2}   Appellant’s estranged wife, Carolene Taylor, was a passenger in an

automobile driven by her boyfriend, Daniel Boggs, on November 6, 2007. (Tr., p.

137.) Carolene and Boggs were going to pick up her sixteen-year-old son, Evan

Taylor, at a friend’s house. Evan is also Appellant’s son. (Tr., pp. 138, 189.) As

Evan walked toward the back seat on the driver’s side of the car, a white car

appeared and pulled up alongside Boggs’ car. (Tr., p. 169.) All three of them heard

one of the passengers in the white car call to Evan to get out of the way. (Tr., pp.

139, 167, 191.) Evan ran to the front of the car and Carolene ducked and jumped out

of the car. (Tr., p. 139.) A single gunshot was fired, and then the white car sped

away. (Tr., p. 138.) Boggs gave chase and ultimately rear-ended the white vehicle.

(Tr., p. 170.) The collision disabled Boggs’ car.

       {¶3}   A bullet hole was found in the driver’s side headrest of Boggs’ car, and

a spent bullet was found on the front passenger floorboard underneath the

dashboard. (Tr., pp. 211-212.) The back driver’s side window was shattered. At the
                                                                                    -3-

scene, Carolene identified Appellant as the gunman, (Tr., p. 140), and both Boggs

and Evan identified the voice they heard that evening as Appellant’s voice. (Tr., pp.

171, 191.)    However, Evan later testified on cross-examination that he was not

certain that the voice he heard was Appellant’s. (Tr., p. 199.)

       {¶4}   A warrant for Appellant’s arrest was issued on November 7, 2007, but

he was not arrested until January 10, 2008. Officer Mark Gillette testified that he

attempted to arrest Appellant at 23 East Auburndale (the address on the warrant) on

November 7, 2007, but Appellant was not at the address. (Tr., p. 254.) Gillette left a

card containing his contact information with the owner of the residence in the event

that Appellant returned.

       {¶5}   Gillette further testified that he received information about Appellant’s

whereabouts at the East Auburndale address on January 10, 2008, and that he,

approximately six to eight members of the Violent Crimes Task Force, and a K-9 unit

responded to the location. (Tr., pp. 254-256.) Gillette knocked on the door and

commanded that Appellant exit the residence, however, Appellant did not comply.

(Tr., pp. 257-258.)

       {¶6}   With the owner’s permission, the task force entered the residence with

the K-9 unit and announced their presence. (Tr., p. 259.) The dog alerted on a

closet door in a rear section of the house.       (Tr., p. 260.)   Gillette commanded

Appellant to exit the closet. Again, he did not comply. (Tr., p. 261.) The dog was

allowed to enter the closet and started to remove clothes from a pile on the floor,

revealing “some legs and some shoes.” (Tr., p. 261.) Appellant continued to ignore

Gillette’s commands to exit the closet, so the officers pulled him out of the closet by
                                                                                        -4-

his legs. The state relied upon the foregoing facts as evidence of Appellant’s attempt

to evade arrest and of his consciousness of guilt.

       {¶7}      Based on a 1994 decision from this Court, Appellant contends that the

trial court erred when it admitted evidence of his efforts to avoid arrest because those

events occurred several months after he committed the crimes. He further contends

that the trial court erred when it included a flight instruction in the jury charge.

       {¶8}      While it is true that this Court has written, in dicta, that the effort to

avoid arrest must occur at a time and place near the criminal activity, the Ohio

Supreme Court has more recently held that admissibility of evidence of flight does not

depend upon the amount of time that passes between the offense and the

defendant’s flight. Therefore, Appellant’s assignments of error are overruled, and his

conviction is affirmed.

                                ASSIGNMENT OF ERROR I

       {¶9}      “The trial court erred when it admitted, over defense counsel’s

objection, evidence of Mr. Taylor’s flight, in violation of Evidence Rule 403 depriving

Mr. Taylor of his right to due process and a fair trial under the Fourteenth

Amendment to the United States Constitution, and Section 10, Article I of the Ohio

Constitution.”

       {¶10} Evid.R. 402 states that relevant evidence is generally admissible, but

that “[e]vidence which is not relevant is not admissible.” “ ‘Relevant evidence’ means

evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence.” Evid.R. 401.
                                                                                     -5-

       {¶11} However, even relevant evidence can be inadmissible, “if its probative

value is substantially outweighed by the danger of unfair prejudice, of confusion of

the issues, or of misleading the jury.” Evid.R. 403(A). A trial court’s decision on both

the relevance and admissibility of that evidence under Evid.R. 403(A) is reviewed for

an abuse of discretion. State v. Gonzalez, 7th Dist. No. 06MA58, 2008-Ohio-2749,

¶82.   The phrase “abuse of discretion” implies that the trial court's attitude, as

evidenced by its decision, was unreasonable, arbitrary, or unconscionable. State v.

Busch (1996), 76 Ohio St.3d 613, 616, 669 N.E.2d 1125.

       {¶12} Since 1969, in the State of Ohio the fact of an accused’s flight, escape

from custody, resistance to arrest, concealment, assumption of a false name, and

other related conduct have been admissible as evidence of consciousness of guilt,

and of guilt itself. 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,

quoting 2 Wigmore, Evidence (3 Ed.) 111, Section 276; holding reaffirmed in State v.

Williams (1997), 79 Ohio St.3d 1, 11, 679 N.E.2d 646.

       {¶13} However, Appellant cites our decision in State v. Tubbs (February 25,

1994), 7th Dist. No. 92 C.A. 45, for the proposition that “[e]ven if appellant engaged

in the conduct set out in Eaton, such activity at a removed geographic location and

removed point in time cannot support an inference of guilt.” Id. at *5. In Tubbs, the

appellant challenged the flight instruction given to the jury, however, he failed to

include the actual instruction in the record on appeal. Consequently, the assignment

of error challenging the flight instruction was overruled.
                                                                                       -6-

       {¶14} However, the panel in Tubbs went on to discuss some of the erstwhile

merits of this assignment, for its “instructive” value. Id. at *5. In Tubbs, the police

arrested the defendant five weeks after the alleged crime in an entirely separate

location in the city of Youngstown. The Court wrote, in dicta, that, “[e]ven if appellant

engaged in the conduct set out in Eaton, such activity at a removed geographic

location and removed point in time cannot support an inference of guilt. As such,

instructions on flight should be limited to situations when the activities associated with

flight occur at a time and place near the criminal activity for which defendant is on

trial.” Id. While not having an actual transcript of the instruction before the Court, the

panel ultimately concluded that, while giving any flight instruction under this fact

scenario would be error, an instruction given on this issue would constitute harmless

error in Tubbs based upon other testimony that was properly on the record and

before the Court.

       {¶15} In State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151,

the Ohio Supreme Court adopted a broad interpretation of the flight rule announced

in Eaton, supra, albeit in the context of a motion to sever escape charges. In Hand,

the defendant moved to sever the charges in the original indictment from escape

charges that were added after his failed prison escape.

       {¶16} The Ohio Supreme Court reasoned that Hand suffered no prejudice as

a result of the joinder of charges because his participation in the escape attempt,

“was evidence of flight and was admissible as tending to show his consciousness of

guilt.” Id. at ¶167. Hand argued that joinder was not justified, because more than

nine months elapsed between the murders and his escape attempt. The Supreme
                                                                                    -7-

Court cited an Eighth District case, however, and held that “admissibility of evidence

of flight does not depend upon how much time passes between the offense and the

defendant’s flight.” Id. at ¶169, citing with favor State v. Alexander (Feb. 26, 1987),

Cuyahoga App. No. 51784, 1987 WL 7079, *2.

       {¶17} Alexander, supra, the Eighth District favorably relied on by the Supreme

Court, did not involve a prison escape. In fact, Alexander is more closely analogous

to the case at bar. In Alexander, the defendant argued that because six months had

passed between the offense and his flight to Nevada, the evidence of his flight had

little probative value. In rejecting this argument, the Eighth Appellate District held

that admissibility of evidence of flight was not contingent upon how much time passes

between the offense and the defendant’s flight. Id. at *5. In Hand, the Supreme

Court adopted the reasoning of the Eight District in Alexander that “flight on the eve

of trial can carry the same inference of guilt as flight from the scene.” Id. at ¶169,

Alexander at 2. Thus, any dicta to the contrary in our earlier case has been overruled

by the Supreme Court.

       {¶18} In addition to his misplaced reliance on Tubbs, infra, Appellant in this

case also argues that he was not aware that the police were pursuing him.

Therefore, his conduct cannot be considered as evidence of consciousness of guilt.

Appellant’s premise is belied by his own mother, who testified at trial that she told

Appellant to surrender to the police when she discovered that the police were looking

for him. (Tr., p. 314.)

       {¶19} Assuming arguendo that evidence regarding the manner of Appellant’s

apprehension should not have been admitted at trial, admission of the evidence of
                                                                                     -8-

flight would, at best, constitute harmless error. There was testimony submitted at trial

indicative of Appellant’s guilty. Carolene identified Appellant as the gunman, and

both Boggs and Evan stated that, although they did not see the gunman, they

recognized the voice of the man who called to Evan as Appellant’s.

       {¶20} In an attempt to present an alibi, Appellant offered the testimony of his

mother and a friend, who both testified that Appellant was attending a birthday party

at the time the crimes were committed.           (Tr., pp. 292-294, 305-307.)   However,

neither witness could explain why they did not contact the police prior to trial, when

they were aware that their testimony would provide an alibi to the felonious assault

charges. (Tr., pp. 296, 300, 308.)

       {¶21} Nevertheless,      based     upon    the   Ohio   Supreme   Court’s   broad

interpretation of the rule announced in Eaton, supra, the admission of the testimony

regarding Appellant’s efforts to avoid arrest was not an abuse of discretion. Further,

there was sufficient evidence of Appellant’s guilt such that Appellant was not

prejudiced as a result of the admission of the flight evidence. Therefore, Appellant’s

first assignment of error is overruled.

                              ASSIGNMENT OF ERROR II

       {¶22} “The trial court erred when it gave an instruction on flight, over defense

counsel’s objection, depriving Mr. Taylor of his right to due process and a fair trial

under the Fourteenth Amendment to the United States Constitution, and Section 10,

Article I of the Ohio Constitution.”

       {¶23} The jury charge as regards this issue states, in pertinent part:
                                                                                         -9-

       {¶24} “In this case there was evidence that the defendant fled from the vicinity

of the crime immediately following the alleged felonious assault of Carolene Taylor

and Daniel Boggs and that he subsequently hid in a closet. You are instructed that

this conduct alone does not raise a presumption of guilt, but it may tend to indicate

the defendant’s consciousness of guilt. If you find that the facts do not support that

the defendant fled the scene or hid in a closet, 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 that the defendant was motivated by a

consciousness of guilt, you may, but are not required, to consider that evidence in

deciding whether the defendant is guilty of the offenses charged. You alone will

determine what weight, if any, to give to this evidence.” (Tr., pp. 379-380.) The jury

instruction parrots the language of 4 Ohio Jury Instructions (2005) Section 409.13.

       {¶25} A flight instruction is treated as part of the overall jury instructions and is

reviewed in the context of the entire jury instructions. State v. Price (1979), 60 Ohio

St.2d 136, 14 O.O.3d 379, 398 N.E.2d 772, paragraph four of the syllabus. A trial

court is required to give the jury all instructions that are relevant and necessary for

the jury to weigh the evidence and fulfill its duty as factfinder. State v. Comen (1990),

50 Ohio St.3d 206, 210, 553 N.E.2d 640.

       {¶26} When a timely objection has been made to the jury instructions

pursuant to Crim.R. 30, a reviewing court will not reverse the trial court’s decision not
                                                                                    -10-

to give a requested jury instruction or to the charge actually given absent an abuse of

discretion. State v. Wolons (1989), 44 Ohio St.3d 64, 68, 541 N .E.2d 443.

       {¶27} Because we have concluded that the trial court did not err when it

admitted the flight evidence, the flight instruction was both “relevant and necessary

for the jury to weigh the evidence.” See Comen, supra, at 210. Moreover, the jury

charge on flight properly instructed the jury that it may reject the flight evidence

altogether in the event that they concluded that Appellant’s motivation was something

other than an effort to avoid arrest. In other words, the instruction allowed the jury to

accept Appellant’s argument that he hid in the closet out of fear of the situation,

rather than to avoid capture.      See State v. Brown, 1st Dist. Nos. C-080320, C-

080321, 2009-Ohio-1889, ¶20. Therefore, the trial court did not abuse its discretion

when it instructed the jury on flight.

       {¶28} Based upon the Supreme Court’s opinion in Hand, supra, both of

Appellant’s assignments of error are overruled, and his conviction is affirmed.


Donofrio, J., concurs.

DeGenaro, J., concurs.
