Opinion
No. 109045
07-02-2020
STATE OF OHIO, Plaintiff-Appellee, v. KENNETH GULLEY, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Jonathan Block, Assistant Prosecuting Attorney, for appellee. Buckeye Law Office and P. Andrew Baker, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-639339-A
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Jonathan Block, Assistant Prosecuting Attorney, for appellee. Buckeye Law Office and P. Andrew Baker, for appellant. KATHLEEN ANN KEOUGH, P.J.:
{¶ 1} Defendant-appellant, Kenneth Gulley, appeals from the trial court's judgment finding him guilty of harassment with a bodily substance, assault, and theft, and sentencing him to 18 months in prison. Finding no merit to the appeal, we affirm.
I. Background
{¶ 2} Gulley was indicted as follows: Count 1, harassment with a bodily substance in violation of R.C. 2921.38(B); Count 2, assault in violation of R.C. 2903.13(A); Count 3, theft in violation of R.C. 2913.02(A)(1); and Count 4, aggravated menacing in violation of R.C. 2903.21(A). The charges arose out of incidents that occurred on April 13, 2019. Gulley pleaded not guilty, and the matter proceeded to a jury trial.
{¶ 3} Christopher Anderson, an asset protection detective at the Macy's store in University Heights, testified that he monitors security cameras at Macy's for suspicious activity in the store. He said that on April 13, 2019, he called security personnel at a nearby Target store after he observed a male, later identified as Gulley, shoplift several items from Macy's and then exit the store. Anderson advised that the shoplifter was likely headed to Target, and described the shoplifter as a black male, wearing a gray hoodie and a beanie hat, and carrying a gray backpack.
{¶ 4} John Austin, team leader of asset protection at Target, testified that shortly after receiving Anderson's call, he observed Gulley on Target's surveillance cameras. Austin said he saw Gulley enter the electronics department, pick up two Sony speakers and take them to the next aisle, where he tried to get the security devices off the speakers. Austin said that Gulley eventually put one of the speakers in his backpack, took the escalator down to the first floor, and exited the store. Austin testified that when he confronted Gulley outside the store and identified himself as a security officer, Gulley ran away. Austin then called the University Heights police department, told them what had happened, and gave a description of the suspect. Austin identified state's exhibit No. 11 as the security camera footage from Target of Gulley's theft from the store and described the events as the security video was played for the jury.
{¶ 5} University Heights Police Officer Michael Ferrara testified that he began searching the area around Target in his car in response to a radio dispatch and description of the shoplifter. He said that he located Gulley, but as he was radioing dispatch, Gulley turned, saw him on his radio, and then jumped a nearby fence and ran away. Officer Ferrara said that he parked his car and searched for Gulley, and eventually found him hiding behind an SUV in an open garage.
{¶ 6} Officer Ferrara testified that Gulley came out of the garage and was initially compliant when he handcuffed him. He said that Gulley became increasingly agitated, however, when he found Gulley's ID and the stolen items in Gulley's backpack. Officer Ferrara identified state's exhibit Nos. 1-5 as pictures of the items found in Gulley's backpack, including the Sony speaker stolen from Target.
{¶ 7} Officer Ferrara testified that he and University Heights Police Officer Adam Lipply, who had arrived on the scene, contacted the security officials at Macy's and Target and asked them to come to the scene to identify Gulley. He testified that they placed Gulley in the backseat of a police cruiser while they waited for the security personnel to arrive, and as they waited, Gulley became increasingly more agitated, and started swearing, threatening the officers, and kicking the door of the patrol car.
{¶ 8} Officer Ferrara testified that because Gulley was so agitated, instead of removing him from the patrol car for the identification, the police kept him in the backseat of the car, everyone got close to the window, and Officer Ferrara then rolled down the window. Officer Ferrara said that immediately after the window was rolled down, Gulley put his head close to the bars and spit out the window, hitting him, Officer Lipply, and the security personnel with his spit. Officer Ferrara identified state's exhibit No. 6 as a picture of Gulley's spit on his right forearm, elbow, and shirt.
{¶ 9} Anderson, the Macy's security detective, likewise testified that Gulley spit out the window and that his spit "got everyone, including me, the Target security and all of the officers standing around." (Tr. 251.) He identified state's exhibit Nos. 7 and 8 as pictures of Gulley's spit on his arms and shirt. Both Austin and Nehaysha Pearcy, the security personnel from Target who went to the scene for the identification, likewise testified that Gulley spit out the patrol car window and that his spit hit all the people standing nearby, including Officer Ferrara. Pearcy testified further that she identified the speaker stolen from Target at the scene.
{¶ 10} Officer Lipply identified state's exhibit No. 9 as body camera footage of his interaction with Gulley at the scene, including the spitting incident. He testified that after Gulley spit out the window, he got a spit hood and put it over Gulley's head. He said he then transported Gulley to the Solon jail, but because Gulley was so combative upon their arrival, jail personnel told him they would not accept Gulley until he had a psychological evaluation.
{¶ 11} Officer Lipply said he then transported Gulley to Ahuja Medical Center, where Gulley continued his combative behavior. Officer Lipply testified that Gulley had to be restrained on a gurney as he was brought into the hospital, and then had to be restrained in his hospital bed. Officer Lipply said that at various times, Gulley tried to kick the nurses and that at one point, when he moved to adjust the spit hood on Gulley's head, Gulley tried to bite his hand and told him he was going to "barbeque" him and "eat" him.
{¶ 12} After the trial court denied Gulley's Crim.R. 29 motion for acquittal, Gulley testified in his own defense. Gulley admitted that he stole the Sony speaker from Target and that he fled from Austin when he confronted him at Target. Gulley admitted further that he hid in a garage for a while to avoid police detection, and that he jumped a fence and hid again after Officer Ferrera spotted him. He agreed that he spit out the window of the patrol car but denied he was trying to hit anyone with his spit. He also admitted that he said "some words" about barbequing and eating Lipply while he was at Ahuja Medical Center but denied that he ever lunged at him or tried to bite him.
{¶ 13} At the conclusion of all the evidence, the trial court again denied Gulley's Crim.R. 29 motion for acquittal. The jury subsequently found Gulley guilty of Count 1, harassment with a bodily substance (spitting on Ferrara); Count 2, assault on a peace officer (Gulley's attempt to bite Lipply); and Count 3, theft of the speaker from Target. The jury found Gulley not guilty of Count 4, aggravated menacing of Officers Ferrara and Lipply.
{¶ 14} The trial court sentenced Gulley to 12 months incarceration on Count 1 and 18 months on Count 2, to be served concurrently, and to time served on Count 3. This appeal followed.
II. Law and Analysis
A. Sufficiency of Evidence
{¶ 15} The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. 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. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶ 16} Gulley was convicted in Count 1 of harassment with a bodily substance in violation of R.C. 2921.38(B), which provides in pertinent part that
[n]o person, with intent to harass, annoy, threaten, or alarm a law enforcement officer, shall cause or attempt to cause the law enforcement officer to come into contact with blood, semen, urine, feces, or another bodily substance * * * by expelling the bodily substance upon the law enforcement officer * * *.
{¶ 17} R.C. 2921.38(F) provides an exception to the crime of harassment with a bodily substance. It states that "this section does not apply to a person who is hospitalized, institutionalized, or confined in a facility operated by the department of mental health and addiction services or the department of developmental disabilities."
{¶ 18} In his first assignment of error, Gulley contends that his conviction for harassment with a bodily substance was not supported by sufficient evidence because the state failed to prove that he did not qualify for this statutory exception. In short, Gulley contends that R.C. 2921.38(F) constitutes an element of the crime of harassment with a bodily substance.
{¶ 19} In support of his argument, Gulley directs us to State v. Noble, 9th Dist. Lorain No. 04CA008495, 2005-Ohio-600, in which the Ninth District, in the context of reviewing the denial of a pretrial motion to dismiss, commented that R.C. 2921.38(E) (now R.C. 2921.38(F)) set forth a necessary element of the offense of harassment with a bodily substance, and that the state "had to prove that the detention facility was not a facility operated by the department of mental health or the department of mental retardation and developmental disabilities." Id. at ¶ 8.
{¶ 20} Gulley fails to point out, however, that other courts, including this one, have not followed Noble. In State v. Flucas, 12th Dist. Warren No. CA2017-09-139, 2018-Ohio-3340, the Twelfth District analyzed the same argument made by Gulley and concluded that other than Noble, "no other legal authority in Ohio has concluded that the exception set forth in R.C. 2921.38(F) constitutes an element of the offense of harassment by bodily substance." Id. at ¶ 26.
{¶ 21} Furthermore, upon its review of the statute, the Flucas court concluded that R.C. 2921.38(F) sets forth an exception to the crime of harassment by a bodily substance and does not constitute an additional element of the offense that the state must prove. Id. at ¶ 24. The court reasoned:
The structure of the statute is instructive. R.C. 2921.38(A) through (C) set forth the various elements of the offense. R.C. 2921.38(D) then states that whoever violates this section is guilty of harassment with a bodily substance and provides the degree of the crime depending upon which subsection the offender is convicted. Finally, subsection (F) sets forth the exception for those detained in certain mental health or developmental disabilities facilities. Thus, the statute defines the offense, sets the penalty, and concludes with an exception to the offense in the nature of an affirmative defense. The Ohio Jury Instructions corroborate this analysis, only referring to the language of R.C. 2921.38(A) through (C) in defining the offense. Ohio Jury Instructions, CR Section 521.38 (Rev. May 3, 2008). Moreover, the committee notes specifically refer to the (F) subsection as creating a statutory exception to the offense and not a jury question. Id.Id. at ¶ 24. Accordingly, the court found Noble unpersuasive. Id. at ¶ 26.
{¶ 22} As pointed out in Flucas, this court set forth the elements of harassment with a bodily substance in State v. Miller, 8th Dist. Cuyahoga No. 93731, 2010-Ohio-4347, ¶ 7, and did not include R.C. 2921.38(F) as an element of the offense. Although in Miller we did not specifically consider the question of whether R.C. 2921.38(F) was an additional element of the offense, we clearly did not recognize it as a necessary element of the crime. Nevertheless, to be abundantly clear, we now adopt the reasoning of the Flucas court and specifically hold that R.C. 2921.38(F) is not an element of the crime of harassment with a bodily substance.
{¶ 23} Gulley makes no other challenge to the sufficiency of the evidence supporting his conviction for harassment with a bodily substance, and our review demonstrates that his conviction was overwhelmingly supported by sufficient evidence. The first assignment of error is overruled.
B. Flight Instruction
{¶ 24} The trial court gave the following flight instruction to the jury:
Testimony has been admitted indicating that the defendant fled from the scene. You are instructed that the defendant's flight alone does not raise a presumption of guilt. But it may tend to indicate the defendant's consciousness or awareness of guilt. If you find that the facts do not support that the defendant — the defendant's flight 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.(Tr. 342.)
However, if you find that the facts do support that the defendant engaged in such conduct and if you decide that the defendant was motivated by a consciousness or an awareness of guilt you may but are not required to consider that evidence in deciding whether the defendant is guilty of the crime charged.
{¶ 25} In his second assignment of error, Gulley argues that the flight instruction was not appropriate, requiring reversal of his convictions. He first contends that the instruction should not have been given because he "merely ran from the scene." This argument is without merit.
{¶ 26} A flight instruction on consciousness of guilt based on the flight of the accused is appropriate if there is sufficient evidence presented at trial that the defendant attempted to avoid apprehension. State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, ¶ 49. However, a defendant's mere departure from the scene of the crime does not warrant a flight instruction where there is no evidence of deliberate flight to avoid detection. State v. Jackson, 8th Dist. Cuyahoga No. 100125, 2014-Ohio-3583, ¶ 48. Accordingly, to warrant a flight instruction, it must be clear the defendant took affirmative steps to avoid detection and apprehension beyond simply leaving the scene of the crime. Id. at ¶ 46. "Flight in this context requires the defendant to appreciate that he has been identified as a person of interest in a criminal offense and is taking active measures to avoid being found." State v. Ramos, 8th Dist. Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 28.
{¶ 27} The evidence in this case was sufficient to warrant a flight instruction. Austin testified that he confronted Gulley outside the Target store, but Gulley ran away. Gulley admitted that he heard Austin call for him to stop, but that he ran away and then hid in a garage for approximately 30 minutes "trying to make sure the police pass." (Tr. 291.) He further admitted that when he saw Officer Ferrara, he "didn't stop. Kept going. Just like he said. Ran up the street. Went one block up. Then I tried to hide." (Tr. 291.) Accordingly, there was sufficient evidence that Gulley knew he had been identified as a person of interest in the shoplifting incident at Target and fled in an effort to avoid police detection.
{¶ 28} Gulley next contends that even if the flight instruction was appropriately given with regard to Count 3, the theft offense, the trial court erred in not instructing the jury that the instruction did not apply to the other counts.
{¶ 29} '"A reviewing court may not reverse a conviction in a criminal case due to jury instructions unless it is clear that the jury instructions constituted prejudicial error."' Hill at ¶ 58, quoting State v. Jackson, 8th Dist. Cuyahoga No. 100125, 2014-Ohio-3583, ¶ 49. To determine whether an erroneous instruction was prejudicial, a reviewing court must examine the jury instructions as a whole. State v. Van Gundy, 64 Ohio St.3d 230, 233-234, 594 N.E.2d 604 (1992). A jury instruction constitutes prejudicial error where it results in a manifest miscarriage of justice. State v. Austin, 8th Dist. Cuyahoga Nos. 106215 and 106530, 2018-Ohio- 3048, ¶ 58. Any error, defect, irregularity, or variance that did not affect a substantial right is to be disregarded. Id., citing Crim.R. 52(A).
{¶ 30} Even assuming for the sake of argument that the trial court erred in not advising the jury that the flight instruction applied only to the theft offense, we find no prejudicial error. In giving the instruction, the judge referenced "testimony * * * indicating that defendant fled from the scene." (Tr. 342.) After giving the flight instruction, the judge instructed the jury as to each count and that each count was separate and distinct, and that the jury was to consider the evidence applicable to each count, uninfluenced by its verdict as to any other count. (Tr. 346-359.) Thus, reading the instructions as a whole, which we are required to do, we conclude that the flight instruction was sufficiently clear to enable the jury to comprehend and apply the evidence of flight as pertaining to only the theft offense. Indeed, as evidenced by the jury's not guilty verdict on Count 4, it is apparent the jury was able to distinguish between Gulley's flight to avoid police detection for the theft offense charged in Count 3 and the other counts, where flight was not an issue.
{¶ 31} Finally, Gulley points to two instances in the record where improper hearsay evidence was allegedly admitted, and one instance where alleged improper other acts evidence was admitted. He contends that the cumulative effect of the trial court's failure to instruct the jury that the flight instruction applied only to the theft offense, combined with the admission of the alleged improper hearsay and other acts evidence, renders the instruction prejudicial, thereby requiring reversal.
{¶ 32} Gulley provides no legal or factual basis to support his blanket assertion that evidence was improperly admitted. He cites to no rule or authority to demonstrate why the evidence was improper hearsay or other acts evidence, and makes no argument whatsoever as to why the evidence should not have been admitted. Accordingly, we are not obliged to consider this argument. App.R. 16(A)(7). "If evidence, authority, and arguments exist that can support an assignment of error, it is not the duty of the appellate court to root it out." Sutton v. Ohio Dept. of Edn., 2017-Ohio-105, 80 N.E.3d 1238, ¶ 35 (8th Dist.).
{¶ 33} The flight instruction was properly given in this case. Moreover, even if the trial court erred in not instructing the jury that the instruction related only to the theft offense in Count 3, after reviewing the jury instructions as a whole, we find no prejudicial error that resulted in a manifest miscarriage of justice. The second assignment of error is therefore overruled.
C. Other Acts Evidence
{¶ 34} In his third assignment of error, Gulley contends that the trial court erred by admitting evidence of his other bad acts in violation of Evid.R. 404(B). Specifically, Gulley objects to Anderson's testimony that he observed Gulley shoplifting at Macy's and to photographs indicating that he spit on Anderson. Gulley contends that although he admitted he stole from Target, Anderson's testimony about his earlier theft from Macy's prejudiced him with respect to the counts upon which he did not concede his guilt. He further contends that he was charged with spitting on Officer Ferrara only, and evidence that he spit on other people allowed the jury to convict him of spitting on Officer Ferrara merely because the jury assumed he acted in conformity with his bad character.
{¶ 35} This court reviews a trial court's decision regarding the admission of evidence for an abuse of discretion. State v. Sheline, 8th Dist. Cuyahoga No. 106649, 2019-Ohio-528, ¶ 32, citing State v. Conway, 100 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 62. Accordingly, our inquiry is limited to whether the trial court's evidentiary rulings were unreasonable, arbitrary, or unconscionable. Sheline at id., citing State v. Barnes, 94 Ohio St.3d 21, 23, 759 N.E.2d 1240 (2002).
{¶ 36} "Evidence that an accused committed a crime other than the one for which he is on trial is not admissible when its sole purpose is to show the accused's propensity or inclination to commit crime or that he acted in conformity with bad character." State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 12778, ¶ 15. Nevertheless, "evidence of other crimes, wrongs, or acts of an accused tending to show the plan with which an act is done may be admissible for other purposes, such as those listed in Evid.R. 404(B) - to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or the absence of mistake or accident." Id. at ¶ 19. "Hence, the rule affords broad discretion to the trial judge regarding the admission of other acts evidence." Id. at ¶ 17.
{¶ 37} In deciding whether to admit other acts evidence, trial courts should conduct a three-step analysis:
The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.
Evid.R. 401. The next step is to consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B). The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice. See Evid.R. 403.Williams at ¶ 20.
{¶ 38} Anderson testified that while carrying a backpack, Gulley picked up several items of clothing at Macy's, entered a fitting room, and then exited the fitting room without the clothing but still carrying the backpack. (Tr. 249.) When he checked the fitting room, Anderson found only empty hangers and price tags. (Tr. at id.) Anderson testified further that Gulley immediately left the store. (Tr. 250.)
{¶ 39} Considering the first step of the three-step analysis, we find that Anderson's testimony about Gulley's shoplifting incident at Macy's was relevant because it tended to show Gulley's intent and plan when he arrived at Target shortly after leaving Macy's carrying the same backpack he had in Macy's. "Interactions in the near past in similar and identical situations may tend to show a scheme, plan, or system." State v. Simpson, 8th Dist. Cuyahoga No. 89158, 2008-Ohio-3817, ¶ 42.
{¶ 40} Regarding the second step — whether the evidence was presented to prove the accused's character in order to show the conduct was in conformity with that character — the state did not offer Anderson's testimony to show that shoplifting at Target was in conformity with Gulley's character. Rather, Anderson's testimony was offered to give context to the events that occurred at Target only shortly after Gulley was spotted at Macy's and to prove Gulley's intent and plan when he entered Target.
{¶ 41} Finally, the probative value of Anderson's testimony was not outweighed by the danger of unfair prejudice. The trial court specifically instructed the jury that evidence of Gulley's "various offenses" was not offered to prove his character in order to show that he acted in conformity or accordance with that character and they were not to consider it for that purpose. (Tr. 341.) We presume the jury followed this instruction. Williams at ¶ 24 (probative value of other acts evidence not substantially outweighed by the danger of unfair prejudice where the court instructed the jury that the evidence could not be considered to show that the defendant acted in conformity with a character trait).
{¶ 42} Gulley next contends that state's exhibit Nos. 7 and 8, pictures of his spit on Anderson's arm and shirt, were improperly admitted in violation of Evid.R. 404(B) because he was charged with spitting on Officer Ferrara, not Anderson, and the photographs were presented to show that his spitting on Officer Ferrara was in conformity with his other bad behavior.
{¶ 43} Anderson testified that Gulley spit out the window of the police cruiser, and that his spit landed on "everyone," including himself and Officer Ferrara. (Tr. 250-251.) Regarding the first step of the three-step analysis set forth in Williams, the photographs were relevant to Count 1, harassment with a bodily substance, because they corroborated Anderson's testimony that the spitting incident occurred and that Gulley's spit came in contact with all the people standing around the cruiser.
{¶ 44} Regarding the second step, the photographs were not presented to prove Gulley's character and that he acted in conformity with that character; they were presented to demonstrate that Gulley intended to spit out the window and that his spit would hit everyone standing around the car. Intent to harass, annoy, threaten, or alarm a law enforcement officer by expelling a bodily substance upon the officer is an element of the offense of harassment with a bodily substance, and other acts evidence is properly admissible under Evid.R 404(B) to show intent.
{¶ 45} Finally, because the court properly instructed the jury that it could not consider Gulley's "various offenses" to conclude that he acted in conformity with that character, an instruction the jury presumably followed, the prejudicial effect of the evidence did not outweigh its probative value. The trial court did not abuse its discretion in admitting Anderson's testimony and the photographs, and the third assignment of error is overruled.
{¶ 46} 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 conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
KATHLEEN ANN KEOUGH, PRESIDING JUDGE MICHELLE J. SHEEHAN, J., and
MARY EILEEN KILBANE, J., CONCUR