[Cite as State v. Adams, 2020-Ohio-1140.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 28446
                                                 :
 v.                                              :   Trial Court Case No. 2019-CR-278
                                                 :
 DARRYL E. ADAMS                                 :   (Criminal Appeal from
                                                 :   Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                            OPINION

                            Rendered on the 27th day of March, 2020.

                                            ...........

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

MARK J. BAMBERGER, Atty. Reg. No. 0082053, P.O. Box 189, Spring Valley, Ohio
45370
      Attorney for Defendant-Appellant

                                            .............



TUCKER, P.J.
                                                                                         -2-


       {¶ 1} Defendant-appellant, Darryl E. Adams appeals from his convictions for one

count of escape, a third degree felony pursuant to R.C. 2921.34(A)(1); and one count of

unauthorized use of a vehicle, a first degree misdemeanor pursuant to R.C. 2913.03(A)

and (D)(2). Raising two assignments of error, Adams argues that his conviction for

escape should be reversed because the jury disregarded the manifest weight of the

evidence in finding him guilty, and because his trial counsel was ineffective for failing to

move for either a directed verdict or for judgment notwithstanding the verdict. Adams’s

arguments have no merit, and his convictions are therefore affirmed.

                            I. Facts and Procedural History

       {¶ 2} In Montgomery C.P. No. 2017-CR-2777, Adams was convicted on April 6,

2018, for one count of trafficking in heroin, a fourth degree felony pursuant to R.C.

2925.03(A)(2) and (C)(6)(c).1 The trial court in that case sentenced him to community

control sanctions for a period not to exceed five years, and on January 17, 2019, the court

approved his admission into the Secure Transitional Offender Program (“STOP”). Those

admitted must reside in the program’s facility on South Gettysburg Avenue for the

duration of their placements and may not leave the premises unescorted. Transcript of

Proceedings 93:14-93:20, 96:20-97:22, 106:22-107:3, 124:16-127:5, and 128:22-129:3,

June 10-11, 2019.       Among other things, participants in the program engage in

community service work. Id. at 107:4-107:19.

       {¶ 3} On January 23, 2019, a private security officer drove Adams and two other

participants in a van, which was owned by Montgomery County, to the nearby Volunteers


1We refer to that version of R.C. 2925.03 which was effective from September 14, 2016,
until October 30, 2018.
                                                                                       -3-


of America building for a work assignment. Id. at 105:19-106:3, 108:20-109:14, 115:4-

115:10 and 136:19-137:12. While the security officer and the other participants were

occupied, Adams slipped into the driver’s seat and drove away in the van. Id. at 109:19-

111:21. The security officer contacted his supervisor, who altered law enforcement

personnel. See id. at 112:4-112:12.

      {¶ 4} One or more days later, officers with the Dayton Police Department

recovered the van in an alley on Indiana Avenue.2 Id. at 113:23-114:1, 137:1-137:12.

On February 1, 2019, a Montgomery County grand jury indicted Adams in Montgomery

C.P. No. 2019-CR-278 as follows: Count 1, escape, a violation of R.C. 2921.34(A)(1);

Count 2, grand theft of a motor vehicle, a violation of R.C. 2913.02(A)(1); and Count 3,

unauthorized use of a vehicle, a violation of R.C. 2913.03(A). Adams’s case proceeded

to trial on June 10, 2019, and at the conclusion of the trial on June 11, 2019, the jury

found him guilty on Counts 1 and 3, and not guilty on Count 2.

      {¶ 5} In Case No. 2017-CR-2777, the trial court sentenced Adams to serve a term

of 18 months in prison as a result of his violation of the conditions of community control

originally imposed in that case. Immediately after the conclusion of the trial in Case No.

2019-CR-278, which was heard by the same judge, the trial court sentenced Adams to


2 Officer Timothy Polley testified on behalf of the Dayton Police Department. Transcript
of Proceedings 136:1-148:11. He never mentioned the date, referring only to “[t]hat day,”
but neither the State nor Adams’s counsel asked him to specify the date for the record.
Id. Yet, Polley noted that the van must have been parked in the alley since the evening
before he and his partner found it, based on snow accumulation, and the private security
officer testified that the van “was returned the next---the next day or two after it was
located.” Id. at 113:23-114:1 and 137:1-137:9. The return of service filed in the trial
court indicated that Adams was served with the resulting warrant for his arrest on
February 1, 2019; he was being held in jail at the time. Return of Service 1-2, Feb. 4,
2019.
                                                                                         -4-


serve 30 months in prison for his conviction on the charge of escape, and 180 days in jail

for his conviction on the charge of unauthorized use of a vehicle, with the terms to be

served concurrently to each other, but consecutively to the sentence in Case No. 2017-

CR-2777. Adams timely filed his notice of appeal from the judgment in Case No. 2019-

CR-278 on June 20, 2019.

                                       II. Analysis

      {¶ 6} For his first assignment of error, Adams contends that:

             THE TRIAL COURT FAILED TO PROPERLY CONSIDER THE

      MANIFEST EVIDENCE OF INNOCENCE[.]

      {¶ 7} Adams argues that “[i]f he was [sic] not in custody at the time in question, his

time and involvement with STOP would not be mandatory[,] and thus he would be liable

[sic] for an escape.” Appellant’s Brief 12. He offers no challenge to his conviction for

unauthorized use of a vehicle. See id. at 10-17.

      {¶ 8} Comparing the relatively relaxed procedures for supervising participants

residing in STOP’s facility on Gettysburg Avenue to the rigid procedures for securing

inmates in a jail or a prison, Adams claims “there was no mandate for [him] to do anything

other than what he did, thus he clearly did not escape from his obligation, but instead do

[sic] what he thought was allowed and what was told to him as being acceptable.” Id. at

13. Essentially, Adams claims that although he was serving a court-ordered term of

community control sanctions, and was specifically “ordered [by the court to] enter and

complete drug intervention at S.T.O.P.,” he was not “under detention” for purposes of

R.C. 2921.34(A)(1). Appellant’s Brief 13; Entry Granting S.T.O.P. 1, Jan. 17, 2019.

This argument lacks merit.
                                                                                       -5-


      {¶ 9} In a challenge to a conviction based on the weight of the evidence, an

appellate court considers not only the quantity of the evidence, but the quality of the

evidence, as well. See State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-

525, ¶ 12; State v. Thigpen, 2016-Ohio-1374, 62 N.E.3d 1019, ¶ 6 (8th Dist.).

Accordingly, the appellate court must review the record; weigh the evidence and all

reasonable inferences; consider the credibility of witnesses; and determine whether in

resolving conflicts in the evidence, the factfinder clearly lost its way and created a

manifest miscarriage of justice warranting a new trial. State v. Thompkins, 78 Ohio St.3d

380, 387, 678 N.E.2d 541 (1997), citing State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983); see also State v. Hill, 2d Dist. Montgomery No. 25172, 2013-

Ohio-717, ¶ 8. A trial court’s judgment, however, “should be reversed as being against

the manifest weight of the evidence ‘only in the exceptional case in which the evidence

weighs heavily against the conviction.’ ” Hill at ¶ 8, quoting Martin at 175. Although the

appellate court “must defer to the factfinder’s decisions whether, and to what extent, to

credit the testimony of particular witnesses,” the court “may determine which of several

competing inferences suggested by the evidence should be preferred.”             (Citation

omitted.) State v. Cochran, 2d Dist. Montgomery No. 27023, 2017-Ohio-216, ¶ 6.

      {¶ 10} Here, to obtain a conviction on the charge of escape, the State had to prove

that Adams, “knowing [he] was under [detention] or being reckless in that regard,

“purposely [broke] such detention.” Ohio Jury Instructions, CR Section 521.34(A)(1)

(Rev. Dec. 10, 2011). During its case in chief, the State introduced the contract that

Adams had to sign at the time of his entry into STOP (the “STOP Contract”), in which

Adams had promised “ ‘to remain in the STOP building and [to] not leave the premises or
                                                                                           -6-


work assignments without authorization.’ ” Transcript of Proceedings 91:24-92:19 and

State’s Exhibit 1. The STOP Contract included a warning that “[a]ny unauthorized

absence [would] result in [the issuance of an] absconding warrant,” and a further warning

that if Adams were to “abscond from [STOP], i.e., from the facility, [from a] community

service worksite, [or from a] medical facility [or] any other off-site location, [he would] be

charged with escape pursuant to [R.C.] 2921.34.” Id. at 92:17-93:3 and State’s Exhibit 1.

       {¶ 11} On direct examination, Adams admitted he drove away from the Volunteers

of America building in a van that he did not own or have permission to drive, and he

acknowledged that he had been cautioned upon his entry into STOP that leaving without

authorization would constitute a violation of his community control sanctions.           See

Transcript of Proceedings 154:20-156:4.        He denied on cross-examination that he

signed or even read the STOP Contract, yet as he had on direct, he confirmed his

understanding that “everybody [in STOP knew they were] not supposed to leave.” See

id. at 163:7-164:20. Nevertheless, he argues on appeal that he “did not legally ‘escape’

” because “he thought [he] was allowed,” without permission, to drive away from the

Volunteers of America building in a vehicle he did not own while serving community

control sanctions to which he had been sentenced in a criminal case. See Appellant’s

Brief 13.

       {¶ 12} The word “detention” as used in R.C. 2921.34(A)(1) “is a legal [term] that

does not imply a location or [a] method of confinement, but instead is an abstract term

describing a person’s status.”3 (Citation omitted.) State v. Boggs, 2d Dist. Montgomery


3 In relevant part, the statutory definition of “detention” is “confinement in any public or
private facility for custody of persons charged with or convicted of crime in this state,”
including “confinement in any vehicle for transportation to or from any [such] facility” and
                                                                                             -7-


No. 22081, 2008-Ohio-1583, ¶ 11. In Case No. 2017-CR-2777, the trial court “ordered

that * * * Adams enter and complete drug intervention at S.T.O.P., in lieu of a 180 day

residential community sanction in the Montgomery County Jail,” and participants in STOP,

a “lockdown drug education program,” may not leave the STOP facility without

authorization.   Entry Granting S.T.O.P. 1; Transcript of Proceedings 89:5-89:8 and

107:4-107:21. STOP is a secured facility, and because Adams’s participation in STOP

was ordered by the trial court as a sanction for his commission of a criminal offense, he

was effectively in custody and serving a criminal sentence at the time of his impromptu

departure from the Volunteers of America. We hold, then, that the jury did not disregard

the manifest weight of the evidence by finding Adams guilty of escape in violation of R.C.

2921.34(A)(1). Adams’s first assignment of error is overruled.

       {¶ 13} For his second assignment of error, Adams contends that:

              THE DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE [sic]

       TO     ASK     FOR      A     DIRECTED        VERDICT       OR     JUDGMENT

       NOTWITHSTANDING THE VERDICT[.]

       {¶ 14} Adams claims that two or more of the State’s witnesses testified that he

should have been charged with violating the conditions of his community control

sanctions, rather than being charged with escape under R.C. 2921.34(A)(1). Appellant’s

Brief 16. He argues accordingly that his trial counsel was ineffective for “fail[ing] to raise

this seminal issue [during] closing [argument],” for “not ask[ing] for a directed verdict prior


“supervision by any employee of any [such] facility * * * that is incidental to * * *
confinement in the facility but that occurs outside the facility.” R.C. 2921.01(E). The
trial court provided substantially the same definition of “detention” in its instructions to the
jury. Transcript of Proceedings 210:19-210:23.
                                                                                         -8-


to jury deliberations,” and for not moving for “judgment notwithstanding the verdict * * *

after jury deliberations.” Id.

       {¶ 15} To prevail on a claim of “ineffective assistance of counsel, a defendant must

satisfy the two-pronged test in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984).” State v. Cardenas, 2016-Ohio-5537, 61 N.E.3d 20, ¶ 38

(2d Dist.).   The Strickland test requires a showing that: “(1) defense counsel’s

performance was so deficient that [it did not fulfill the right to assistance of counsel]

guaranteed under the Sixth Amendment to the United States Constitution; and (2) * * *

defense counsel’s errors prejudiced the defendant.”         Id., citing Strickland at 687.

Judicial “scrutiny of counsel’s performance must be highly deferential,” so “a [reviewing]

court must indulge a strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance * * *.” Strickland at 689, citing Michel v. Louisiana,

350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955). To show prejudice, the defendant

bears the burden to demonstrate “a reasonable probability that, but for counsel’s

unprofessional errors, the result of [a given] proceeding would have been different.” Id.

at 694; State v. Southern, 2d Dist. Montgomery No. 27932, 2018-Ohio-4886, ¶ 47. A

failure to make either showing defeats the claim. Cardenas at ¶ 38.

       {¶ 16} In criminal cases, neither motions for a directed verdict nor motions for

judgment notwithstanding the verdict are available.        See State v. Bump, 2d Dist.

Champaign No. 2015-CA-10, 2016-Ohio-4717, ¶ 55; State v. Boykins, 3d Dist. Marion

No. 9-14-35, 2015-Ohio-935, ¶ 25, fn.2. The equivalent of both of these in criminal cases

is a motion for acquittal under Crim.R. 29, which Adams’s counsel made at the

commencement of the jury’s deliberations.        Bump at ¶ 55; Boykins at ¶ 25, fn.2;
                                                                                         -9-


Transcript of Proceedings 225:12-225:17. Adams’s trial counsel could not have been

ineffective for failing to make motions that were unavailable in a criminal trial, and Adams

cannot demonstrate that he was prejudiced by counsel’s performance, given that counsel

made the equivalent motion under Crim.R. 29. Adams’s second assignment of error is

overruled.

                                      III. Conclusion

       {¶ 17} Adams’s arguments lack merit. The trial court in Case No. 2017-CR-2777

ordered Adams to participate in STOP, and his unauthorized departure from the program

while on a work assignment qualified as breaking “detention” for purposes of R.C.

2921.34(A)(1).    Furthermore, his trial counsel did not render less than professional

assistance for failing to make motions that are unavailable in criminal proceedings.

Therefore, the trial court’s judgment is affirmed.



                                      .............



DONOVAN, J. and HALL, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Sarah E. Hutnik
Mark A. Bamberger
Hon. Barbara P. Gorman
