[Cite as State v. Waters, 2012-Ohio-2360.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SHELBY COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 17-11-37

        v.

NICHOLAS WATERS,                                          OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Shelby County Common Pleas Court
                            Trial Court No. 11CR000167

                                      Judgment Affirmed

                              Date of Decision: May 29, 2012




APPEARANCES:

        Christopher R. Bucio for Appellant

        Ralph Bauer and Jeffrey J. Beigel for Appellee
Case No. 17-11-37


SHAW, P.J.

           {¶1} Defendant-appellant             Nicolas      Waters       (“Waters”)        appeals   the

September 16, 2011 judgment of the Common Pleas Court of Shelby County,

Ohio finding him guilty of escape in violation of R.C. 2921.34(A)(1), a felony of

the fifth degree.

           {¶2} The facts relevant to this appeal are as follows. On May 27, 2011

Waters went to his appointment with the Shelby County Adult Probation

Department having previously been granted Intervention in Lieu of Conviction.

At the appointment, Probation Officer Justin Tidwell (“Tidwell”) notified Waters

that he failed a drug test and that Waters was under arrest.1 When Tidwell got up

to escort Waters to a holding cell, Tidwell turned right outside his office to go

toward the holding cells and Waters took off running to the left in the opposite

direction.        While running, Waters ran into a doorway with “extreme force”

knocking the locking mechanism off. Subsequently Tidwell apprehended Waters

with the assistance of Deputy John Shepherd (“Shepherd”).

           {¶3} On June 23, 2011 Waters was indicted for escape in violation of R.C.

2921.34(A)(1), a felony of the third degree, and vandalism in violation of R.C.

2909.05(B)(2), a felony of the fifth degree.




1
    According to Tidwell’s testimony, Waters was notified twice that he was under arrest.

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          {¶4} The case proceeded to a bench trial on August 30, 2011. Upon the

case being called, the State of Ohio moved to dismiss the vandalism charge, and

that motion was granted. Therefore only the charge of escape remained to be

adjudicated.

          {¶5} At trial the State put on testimony of Tidwell and Shepherd, then

rested. Following the denial of Waters’ Rule 29 motion for acquittal, Waters took

the stand. Waters testimony of events was similar to Tidwell’s except Waters

claimed that when he was told he was under arrest he jumped up and ran out of the

office whereas Tidwell testified that Waters ran as Tidwell was in the process of

escorting Waters to a holding cell. (Tr. at 9, 34).

          {¶6} After Waters testified, he called Bengie Waters, his father, and Ruth

Day, his normal probation officer, and then Waters rested. The State called one

witness in rebuttal, Andrea Lambert, who testified to overhearing the conversation

between Tidwell and Waters.

          {¶7} On September 16, 2011, the trial court filed its “Decision/Judgment on

Trial to Court” finding Waters guilty of escape. (Doc. 39). Further, the trial court

stated,

          [t]his court must also consider another legal issue not raised by
          counsels. That is the degree of offense proved. Where the
          degree of the offense is dependent upon proof of another offense
          of prior conviction it is an essential element and must be proved
          by the State beyond a reasonable doubt. The Defendant may
          only be convicted of the least serious degree of offense proved.

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      In an Escape charge, the degree of the offense is determined by
      the underlying offense. The only evidence presented regarding
      the underlying offense was by Probation Officer Tidwell. On
      cross-examination, Tidwell was asked what Waters was on
      community control for.       The response of Tidwell was,
      “Trafficking.” No further testimony or evidence was presented
      describing the nature of the Trafficking charge. “A trial court
      may not take judicial notice of prior proceedings in the court,
      but may only take judicial notice of prior proceedings in the
      immediate case.” (Citation omitted).

      “The rule is well established in Ohio that trial courts may not
      take judicial notice of their own proceedings in other cases, even
      though between the same parties, and even though the same trial
      judge may have presided.” (Citation omitted). Accordingly, this
      Court cannot take judicial notice of the underlying case
      resulting in the Defendant being granted intervention in lieu of
      conviction, but, rather, must only look to the evidence presented
      in this case.

      Ohio Revised Code Section 2925.03 is the Trafficking statute.
      The degree of the offense is dependent upon the nature and
      quantity of the drugs involved in Trafficking. Since no evidence
      was presented as to the nature of the Trafficking, this court is of
      the opinion that it must give the benefit to the Defendant and
      consider the least serious form of Trafficking. Revised Code
      Section 2925.03(C)(3)(g) provides that a gift of twenty (20)
      grams or less of Marijuana is Trafficking in Marijuana, a minor
      misdemeanor.

      Revised Code Section 2921.34 provides that the offense of
      Escape is a felony of the fifth degree when the most serious
      offense for which the person was under detention is a
      misdemeanor. The State of Ohio, at best, proved that the
      underlying offense was a misdemeanor. Therefore, the degree of
      Escape offense proved by the State is a felony of the fifth degree.

(Doc. 39).


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       {¶8} Thus, as the state had only presented testimony that the underlying

charge related to the escape in this case was “trafficking,” with no specifics as to

the severity of the offense, the trial court found that Waters could only be

convicted of escape as a fifth degree felony under R.C. 2921.34.

       {¶9} It is from this conviction that Waters appeals, asserting the following

assignments of error for our review.

                          ASSIGNMENT OF ERROR I

       THE TRIAL COURT ABUSED ITS DISCRETION BY
       ANALYZING THE INCORRECT LEGAL ISSUE.

       ASSIGNMENT OF ERROR II

       THE TRIAL COURT’S VERDICT IS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE AND THE
       EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT
       THE TRIAL COURT’S VERDICT.

       {¶10} In the interests of clarity, we elect to address the assignments of error

out of order.

                            Second Assignment of Error

       {¶11} In Waters’ second assignment of error he argues that there was

legally insufficient evidence to support his conviction for escape and that his

conviction was against the manifest weight of the evidence. Specifically Waters

argues that the element of “detention” in his escape charge was not proven in that

the State was unable to establish that Waters was under arrest when he ran from


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Tidwell and that none of the other definitions of detention apply to him.

Therefore, according to Waters, the State was unable to satisfy the element of

detention for purposes of the escape charge.

      {¶12} Reviewing a challenge to the sufficiency of the evidence requires this

court to examine the evidence in the light most favorable to the prosecution. The

Ohio Supreme Court has set forth the sufficiency of the evidence test as follows:

      [a]n appellate court’s function when reviewing the sufficiency of
      the evidence to support a criminal conviction is to examine the
      evidence admitted at trial and determine whether such evidence,
      if believed, would convince the average mind of the defendant’s
      guilt beyond a reasonable doubt. 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. Jenks, 61 Ohio St.3d 259 (1991), superseded by state constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997).

      {¶13} Unlike our review of the sufficiency of the evidence, an appellate

court’s function when reviewing the weight of the evidence is to determine

whether the greater amount of credible evidence supports the verdict. State v.

Thompkins, 78 Ohio St.3d 380, 387 (1997). In reviewing whether the trial court’s

judgment was against the weight of the evidence, the appellate court sits as a

“thirteenth juror” and examines the conflicting testimony. Id. In doing so, this

Court must review the entire record, weigh the evidence and all of the reasonable


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inferences, consider the credibility of witnesses, and determine whether in

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

such a manifest miscarriage of justice that the conviction must be reversed and a

new trial ordered.” State v. Andrews, 3d Dist. No. 1-05-70, 2006-Ohio-3764, ¶ 30,

citing Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d

172, 175 (1983).

       {¶14} Waters was convicted of escape in violation of R.C. 2921.34(A)(1)

which reads

       (A)(1) No person, knowing the person is under detention * * * or
       being reckless in that regard, shall purposely break or attempt
       to break the detention[.] * * *

       {¶15} The culpable mental states for criminal conduct related to this charge

are codified in R.C. 2901.22. R.C. 2901.22 provides that:


       (A) A person acts purposely when it is his specific intention to
       cause a certain result, or, when the gist of the offense is a
       prohibition against conduct of a certain nature, regardless of
       what the offender intends to accomplish thereby, it is his specific
       intention to engage in conduct of that nature.

       (B) A person acts knowingly, regardless of his purpose, when
       he is aware that his conduct will probably cause a certain result
       or will probably be of a certain nature. A person has knowledge
       of circumstances when he is aware that such circumstances
       probably exist.

       (C) A person acts recklessly when, with heedless indifference to
       the consequences, he perversely disregards a known risk that his
       conduct is likely to cause a certain result or is likely to be of a

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        certain nature. A person is reckless with respect to
        circumstances when, with heedless indifference to the
        consequences, he perversely disregards a known risk that such
        circumstances are likely to exist.

        {¶16} Waters argues that he was not under detention at the time he ran from

Tidwell as detention is defined in R.C. 2921.01(E) since, as he claims, there was

no valid arrest. One way detention is defined in R.C. 2921.01(E) is as an “arrest.”2

A valid arrest requires the following four elements to be met: (1) an intent to

arrest, (2) under a real or pretended authority, (3) accompanied by an actual or

constructive seizure of the person, (4) which is so understood by the person

arrested. State v. Barker, 53 Ohio St.2d 135 (1978), at syllabus. Waters concedes

in his brief that the first two elements of arrest are met in this case leaving only the

remaining two elements to be examined.

        {¶17} At trial, Tidwell testified that Waters came into his office for a

scheduled appointment. (Tr. at 8). Tidwell testified that he informed Waters that

Waters was under arrest for failing a drug test, thereby violating the terms of a

previous sentence giving Waters Intervention in Lieu of Conviction. (Tr. at 9).

Tidwell testified that Waters protested, saying that he could not be under arrest

that weekend as he had a baseball tournament. Id. Tidwell testified that he

repeated to Waters that Waters was under arrest. Id. According to Tidwell, they
2
 Arrest is just the first of many ways “detention” is defined pursuant to R.C. 2921.01(E). However, in this
case “arrest” was the means argued by the State for detention. As a result, we elect to focus only on
whether Waters was under arrest to satisfy the element of detention in the escape charge.


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Case No. 17-11-37


both then got up from their chairs and Tidwell moved to escort Waters to a

holding cell. Id. When the two reached the hallway, Tidwell turned right to go

toward the holding cells, and Waters took off running to the left, pushing through

a doorway in the process. Id. Waters was thereafter tackled by Tidwell and

Deputy Shepherd before he could leave the building. The testimony of Tidwell

was largely corroborated by the State’s rebuttal witness, Andrea Lambert, who had

overheard parts of the conversation in Tidwell’s office. (Tr. at 53-54).

       {¶18} Although Waters claims that he ran at an earlier point in time, the

trial court explicitly found Tidwell’s version of events more credible than Waters’.

(Doc. 39). While Waters argues that the evidence did not establish that he was

under arrest, and therefore was not detained to satisfy the elements of escape, the

court specifically found otherwise, holding, “that [Waters] had been placed under

arrest and was under detention, albeit however slightly, before he ran from Tidwell

* * * in his effort to leave the probation office and the Courthouse.” Id.

       {¶19} In support of this holding, the court reasoned,

       [i]n this case, the testimony from Probation Officer Tidwell was
       that he was in the process of escorting the Defendant to a
       holding cell when, instead of turning right, the Defendant turned
       left and ran out the door of the probation office. The fact that
       both got up from chairs to go to the holding cell demonstrates
       control over the Defendant by Tidwell.

Id.




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       {¶20} We find that there is sufficient evidence in the record that there was a

constructive seizure, understood by Waters, thereby satisfying the remaining

elements of arrest that Waters did not concede in his brief. Therefore, we find that

the trial court did not commit error in ruling that an arrest occurred, and in turn

finding that the element of “detention” was established for purposes of the escape

charge.

       {¶21} Based upon the foregoing discussion, we find that the trial court’s

decision in this case was based upon sufficient evidence and was not against the

manifest weight of the evidence. Accordingly, Waters’ second assignment of

error is overruled.

                             First Assignment of Error

       {¶22} In Waters’ first assignment of error he argues that the trial court

analyzed the incorrect legal issue. Specifically Waters argues that the trial court

did not analyze whether the facts presented showed beyond a reasonable doubt

that a valid legal arrest actually occurred before Waters ran. We disagree.

       {¶23} Waters argues that the court only looked at whether an arrest

occurred in the context of whether there was a “detention” as an element of

escape. However, as stated above, the trial court explicitly found that Waters had

been placed under arrest. Moreover, the trial court also found Tidwell’s version of

events more credible than Waters’. Based upon the foregoing, we do not find that


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the trial court analyzed the incorrect legal issue.   Accordingly, Waters’ first

assignment of error is overruled.

       {¶24} For the foregoing reasons, Waters’ assignments of error are

overruled.

                                                             Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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