[Cite as State v. Tensley, 2012-Ohio-4265.]



                           IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



STATE OF OHIO,                                :       APPEAL NOS. C-110452
                                                                   C-110453
          Plaintiff-Appellee,                 :      TRIAL NOS. B-0908529-A
                                                                B-1001604
  vs.                                         :

ANTONIO TENSLEY,                              :            O P I N I O N.

          Defendant-Appellant.                :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, Appellant
                           Discharged in Part, and Cause Remanded

Date of Judgment Entry on Appeal: September 21, 2012


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Bruce K. Hust, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                   OHIO FIRST DISTRICT COURT OF APPEALS


FISCHER, Judge.


       {¶1}   Defendant-appellant Antonio Tensley appeals the judgment of the

Hamilton County Court of Common Pleas convicting him of tampering with evidence

in the case numbered B-0908529-A and escape in the case numbered B-1001604.

Because we determine that Tensley’s escape conviction was based upon insufficient

evidence, we reverse the trial court’s judgment in the case numbered B-1001604, and

Tensley is discharged from further prosecution in that case. With respect to the case

numbered B-0908529-A, we remand this case to the trial court to orally inform

Tensley of his postrelease-control obligations in accordance with R.C. 2929.191. We

affirm the remainder of the trial court’s judgment.

                                       Background

       {¶2}   Tensley was indicted in the case numbered B-0908529-A in December

2009, in part, for three counts of trafficking in marijuana and one count of

tampering with evidence, after Tensley had allegedly sold marijuana to a confidential

informant, which then had prompted an execution of a search warrant at Tensley’s

home. Tensley admitted to police officers that he had thrown a bag of marijuana out

of a bedroom window when the officers had arrived to execute the warrant. As

Tensley awaited trial, he remained out on bond and was required to wear an

electronic-monitoring device. Tensley’s bond was subsequently revoked, however,

and a capias was issued because Tensley had failed to comply with the conditions of

the bond by violating curfew and testing positive for marijuana.

       {¶3}   The day after the trial court revoked Tensley’s bond, Tensley and his

counsel appeared before the court at a motion-to-suppress hearing. At the hearing,

Tensley, who was apparently unaware at that time that his bond had been revoked,

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requested that the trial court modify the conditions of his bond. In response to

Tensley’s request, the trial court stated that the request would be denied because a

capias had been issued for Tensley. The trial court then instructed Tensley to sit in a

chair in the jury box, and told him: “[T]he sheriff will come and take you away.”

Tensley did not wait until a sheriff’s deputy arrived, and instead Tensley bolted out of

the courtroom and out of the courthouse.

       {¶4}   Tensley was indicted for escape in the case numbered B-1001604 for

fleeing from the courthouse, and he was eventually arrested.             Tensley’s two

indictments were then joined for a jury trial. As to the 2009 indictment, the jury

found Tensley not guilty of trafficking in marijuana in counts one and two, but could

not reach a verdict on count three, and so the state dismissed that count; however,

the jury found Tensley guilty of tampering with evidence.         The jury also found

Tensley guilty of escape. The trial court sentenced Tensley to concurrent five-year

prison terms on the escape offense and the tampering-with-evidence offense.

Tensley now appeals from his convictions.

                                       Escape

       {¶5}   In his first assignment of error, Tensley argues that his escape

conviction was based upon insufficient evidence. Tensley was convicted under R.C.

2921.34(A)(1), which states, in pertinent 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 * * *.” In relevant part, R.C. 2921.01(E) defines

detention as “arrest.” An arrest of a person requires “(1) [a]n intent to arrest, (2)

under real or pretended authority, (3) accompanied by an actual or constructive

seizure or detention of the person, and (4) which is so understood by the person

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arrested.” State v. Barker, 53 Ohio St.2d 135, 372 N.E.2d 1324 (1978), paragraph

one of the syllabus.

       {¶6}    Tensley argues that he was not “under detention” for purposes of the

escape statute because he was not under arrest at the time that he fled from the

courthouse. We agree. Tensley’s case is analogous to State v. Lazier, 12th Dist. No.

CA2009-02-015, 2009-Ohio-5928. In Lazier, defendant Crystal Lazier had been

charged with trafficking in heroin and was released on bond, subject to an order

requiring her to submit to random drug testing. Id. at ¶ 2. Just a few days after her

arraignment, Lazier tested positive for illegal drug substances. Id. at ¶ 3. The

pretrial-services employee who administered the drug test called to inform the trial

court judge of the results while Lazier was still at the pretrial-services office, and the

judge told the employee to take Lazier into custody. Id. The employee then called

court security to place Lazier into custody. Id. When Lazier asked the employee if

she would be going to jail, the employee responded affirmatively. Id. at ¶ 4. Lazier

then ran out of the building before security arrived, and she was not apprehended

until later that day. Id. at ¶ 4-5.

       {¶7}    Lazier was charged with and convicted of escape under R.C.

2921.34(A)(1). On appeal, the Twelfth Appellate District reversed the trial court’s

judgment convicting Lazier of escape. Id. at ¶ 8. The appellate court determined

that Lazier’s conviction was based upon insufficient evidence because the state had

failed to prove that the pretrial-services employee manifested the requisite intent to

arrest Lazier, and, therefore, Lazier had not been under arrest when she fled from

the pretrial-services office. Id. at ¶ 12.




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       {¶8}    At Tensley’s trial pertaining to the escape charge, the evidence

presented showed that the judge had told Tensley that the court would not remove

Tensley’s bond conditions because of the active capias.           The judge then had

instructed Tensley to sit down in the jury box and informed him that the sheriff

would come to get him. Tensley had fled before an officer had even entered the

room. We determine that this evidence was insufficient to establish that Tensley had

been under detention at the time he had fled because the judge had not had the

requisite intent to arrest Tensley, just as the pretrial-services employee had not

intended to arrest Lazier. Lazier at ¶ 12. As the judge specifically stated, “the sheriff

will come,” which is a statement in futuro, i.e., that Tensley was “to be” arrested.

       {¶9}    The state argues that Tensley’s escape conviction was supported by

sufficient evidence because Tensley knew that he was under some form of

“detention” when he fled.         In support of this argument, the state cites State v.

Diodati, 77 Ohio App.3d 46, 601 N.E.2d 69 (11th Dist.1991) and State v. Jackson, 3d

Dist. No. 1-04-52, 2005-Ohio-1083. Diodati and Jackson are distinguishable. In

Jackson, a police officer approached the defendant in his car, told the defendant that

he “was under arrest,” and told the defendant to turn off his vehicle and unlock the

door, at which time the defendant drove away. Jackson at ¶ 15-16. In Diodati, a

chief of police told the defendant that he “was under arrest” and “handcuffed” him

before the defendant fled. Diodati at 49. In both of these cases, the officers clearly

“intended” to arrest the defendants—as shown by their statements to the defendants

that they were under arrest, and by the officers’ actions in handcuffing the

defendants—whereas the trial court did not “intend” to arrest Tensley and instead

called court security to do so.

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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶10} Because we determine that Tensley’s escape conviction was based

upon insufficient evidence, we sustain Tensley’s first assignment of error.            We

reverse the trial court’s judgment in the case numbered B-1001604, and Tensley is

discharged from further prosecution in that case.

                        Postrelease-Control Notification

       {¶11} In his second assignment of error, Tensley argues that the trial court

erred by failing to inform him at the sentencing hearing that he would be subject to

postrelease control. R.C. 2929.191 requires a sentencing court to advise a defendant

regarding postrelease control at the sentencing hearing, and if the trial court fails to

do so, then it violates its statutory duty, and that part of an offender’s sentence that is

related to postrelease control is void. See State v. Brown, 1st Dist. Nos. C-100390

and C-100310, 2011-Ohio-1029, ¶ 8-9, quoting State v. Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332, ¶ 26.

       {¶12} The state concedes this error, and the record discloses that the court

failed to inform Tensley of his postrelease-control obligations. Therefore, we sustain

Tensley’s second assignment of error, and we remand this matter for the proper

imposition of postrelease control under R.C. 2929.191 with respect to his tampering-

with-evidence charge.

                              Voluntariness of Confession

       {¶13} Tensley’s third assignment of error relates to his tampering-with-

evidence conviction. Tensley admitted to police officers that he threw a bag of

marijuana out of a bedroom window when police came to execute a search warrant.

Prior to that admission, a police officer had told Tensley that Tensley’s girlfriend

would be charged with a weapons offense if Tensley did not admit to disposing of the

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marijuana.     Tensley argues that the police officer’s threat amounted to an

unconstitutional, coercive statement, and that the trial court should have suppressed

his later confession.

       {¶14} In determining whether a pretrial confession is voluntary, a court

should examine the totality of the circumstances. State v. Edwards, 49 Ohio St.2d

31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus.          A totality of the

circumstances includes “ ‘the age, mentality, and prior criminal experience of the

accused; the length, intensity, and frequency of interrogation; the existence of

physical deprivation or mistreatment; and the existence of threat or inducement.’ ”

State v. Mason, 82 Ohio St.3d 144, 154, 694 N.E.2d 932 (1998), quoting Edwards at

paragraph two of the syllabus.

       {¶15} At a hearing on Tensley’s motion to suppress his statement, a police

officer testified that Tensley had been read his Miranda rights prior to his confession

and prior to an officer’s threat of prosecution against Tensley’s girlfriend.      The

interrogation by the officer, including the officer’s threat and Tensley’s subsequent

confession, had not been lengthy or intense and had taken place over a matter of

minutes. Moreover, Tensley testified that he had had prior criminal convictions,

including trafficking in marijuana and falsification. Thus, in examining the totality

of the circumstances surrounding Tensley’s confession, we cannot determine that his

confession was involuntary such that the trial court erred in overruling Tensley’s

motion to suppress. Tensley’s third assignment of error is overruled.

                                 Joinder of Indictments

       {¶16} In his fourth assignment of error, Tensley argues that the trial court

abused its discretion by consolidating his indictments for trial. Crim.R. 13 provides,

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                    OHIO FIRST DISTRICT COURT OF APPEALS



in part, that “[t]he court may order two or more indictments or informations or both

to be tried together, if the offenses or the defendants could have been joined in a

single indictment or information.” Crim.R. 8(A) provides that two or more offenses

may be joined if the offenses “are of the same or similar character, or are based on

the same act or transaction, or are based on two or more acts or transactions

connected together or constituting parts of a common scheme or plan, or are part of

a course of criminal conduct.” A defendant may move to sever the indictments under

Crim.R. 14 by illustrating prejudice. State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d

293 (1990). A defendant is not prejudiced by joinder of indictments, however, where

the evidence presented for each indictment is simple and direct. State v. Franklin,

62 Ohio St.3d 118, 122, 580 N.E.2d 1 (1991).

       {¶17} The evidence presented on Tensley’s tampering-with-evidence charge

and escape charge was simple and direct, such that the jury could segregate the facts

of each crime. Therefore, Tensley has failed to show that he was prejudiced by the

joinder, and we overrule Tensley’s fourth assignment of error.

       {¶18} Thus, in conclusion, we reverse the trial court’s judgment convicting

Tensley of escape in the case numbered B-1001604, and Tensley is discharged from

further prosecution in that case. Furthermore, the cause is remanded to the trial

court with instructions to inform Tensley of his postrelease-control obligations under

R.C. 2929.191 in the case numbered B-0908529-A. We affirm the remainder of the

trial court’s judgment.

                                                                 Judgment accordingly.

SUNDERMANN, P.J., and CUNNINGHAM, J., concur.



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                    OHIO FIRST DISTRICT COURT OF APPEALS


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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