[Cite as State v. Longstreth , 2011-Ohio-1825.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 24287

v. : T.C. NO. 10CR99 MATTHEW H. LONGSTRETH : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N Rendered on the 15 th day of April , 2011.

. . . . . . . . . . TIMOTHY J. COLE, Atty. Reg. No. 0084117, Assistant Prosecuting Attorney, 301 W. Third Street, 5 th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee JAY A. ADAMS, Atty. Reg. No. 0072135, 424 Patterson Road, Dayton, Ohio 45419 Attorney for Defendant-Appellant

. . . . . . . . . . FROELICH, J. {¶ 1} Matthew Longstreth appeals from a j udgment of the Montgomery County Court of Common Pleas, which found him guilty of escape and sentenced him to two years in prison.2 I {¶ 2} The parties’ Joint Stipulation of Fact set forth the background of this case. In March 2009, Longstreth was convicted of th ree counts of receiving stolen property in violation of R.C. 2913.51(A); one count was a felony of the fi fth degree and two counts were misdemeanors of the first degree. He received an aggregate sentence of ten months in prison and was approved for a tran sitional control program. {¶ 3} In July 2009, Longstreth was placed on transitional control at the Dayton Success for Life Center (“DSFL”), a half way house in Dayton, Ohio. He obtained employment at Wendy’s restaurant, but he s ubsequently terminated this employment. {¶ 4} On November 19, 2009, Longstreth left DS FL to look for employment and he did not return. As a result, on December 3, 2009, the Transitional Control Behavioral Review Committee recommended that his transitional cont rol be revoked. {¶ 5} Longstreth was indicted for Escape in February 2010, and he waived his right to a jury trial. A bench trial was held, at which the Joint Stipulation of Fact was offered into evidence. (The trial itself was not transcribed for this court.) The Joint Stipulation of Fact further stated: {¶ 6} “If called to testify, Matthew Longstreth would testify that he had been threatened with physical violence if he returned to the half-w ay house by other residents. He would testify that this is the basis for his failure to return to the half[-]way house. Mr. Longstreth was subsequently sa nctioned for his failure to retu rn to the half-way house and the violation of his post-release control resulted in Mr. Longstre th being sent back to prison on this violation.”3 {¶ 7} Longstreth filed a post-tr ial memorandum in support of his position that he had an affirmative defense – duress – for br eaking detention, and th erefore could not be found guilty of the crime. {¶ 8} The trial court rejected Longstreth’s a ffirmative defense of duress, reasoning: “Because there is no evidence before the Court that Defendant communicated this ‘duress’ to his halfway house supervisor or anyone el se, or was under the immediacy of the type of legal duress addressed in the cases which he submitted, for the entire time of his absence, the Court finds that this defense is not availabl e to Defendant, and that he is GUILTY of the offense of Escape as charged in the indictment.” He was sentenced accordingly. {¶ 9} Longstreth raises one assi gnment of error on appeal.
II {¶ 10} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT WHEN IT FAILED TO PROPERLY CONSIDER THE AFFIRMATIVE DEFENSE OF DURESS.” {¶ 11} Longstreth claims that the trial court failed to properly consider his affirmative defense and that the trial court’s r easoning was “flawed” in two respects. First, he asserts that case law regarding duress doe s not impose a requirement that he inform anyone, including staff at the halfway house, of the alleged threats against him. Second, he asserts that his mental state was only relevant at the time of the escape and that the continuation of his fear thereafter was “immaterial;” thus, he claims that the trial court erred in relying on the fact that his fear of impe nding physical harm had not continued throughout the entirety of his absence from the facility. We interpret this argument as an assertion that4 his conviction for escape was against the manifest weight of the evidence. {¶ 12} In order to establish the defense of duress, the defendant must demonstrate that he was compelled to commit the crime under threat, by another person, of imminent death or serious bodily injury. State v. Lawson , Montgomery App. No. 22155, 2008-Ohio-1311, ¶19, citing State v. Elijah (July 14, 2000), Montgomery App. No. 18034. “The force used to compel the actor’s conduct must remain constant, controlling the will of the unwilling actor during the entire time he commits the act, and must be of such a nature that the actor cannot safe ly withdraw.” Id., citing State v. Getsy, 84 Ohio St.3d 180, 199, 1998-Ohio-533. Although the defendant must subjectively believe that he is being threatened with imminent death or serious bodily harm if he does not commit the crime, that belief must be objectively reas onable based on the evidence. Elijah, supra; State v. Doakes, Montgomery App. No. 18811, 2001-Ohio-6995. {¶ 13} In State v. Cross (1979), 58 Ohio St.3d 482, the Supreme Court of Ohio recognized that, while a defense such as necessity or duress may provide justification for a prison escape under certain circumstances, “rig id limitations on the viability of the defense [must be in place] to insure that the rights and interests of soci ety will not be impinged upon” and to “prevent mass sel f-help releases.” Id. at 486. Cross did not set forth unique elements for a defense of necessity or duress with respect to a prison escape, but it did discuss several reasonable considerations in assessing the validity of such a claim: whether there was “the sense of present, imminent, imme diate and impending death, or serious bodily injury” (as with any claim of necessity or duress); whether the inmate complained to the authorities about the condition(s) prior to the escape; whether the inmate had the time or5 means to resort to the legal system for redress; and whether the inmate turned himself in immediately after fleeing the supposed intolera ble or threatening conditions. Id. at 487-488. The court emphasized that the defense of n ecessity or duress “is strictly and extremely limited in application and will probably be effective in very rare occasions. It is a defense and not a conjured afterthought.” Id. at 488. {¶ 14} In light of Cross , the trial court reasonably considered the lack of any evidence that Longstreth reported his “‘duress’” to the supervisor of the halfway house – or anyone else – before or after his escape. It also reasonably considered his failure to turn himself in to authorities during the weeks afte r his escape, when he was not under a present and immediate threat. Longstreth’s assertion that his state of mind after he initially failed to return to the halfway house was immaterial is without merit, b ecause the definition of escape encompasses the purposeful failure to return to detention following temporary leave for a specific purpose or limited period. R.C. 2921.34(A). By Longstreth’s own stipulation, he left the halfway house – presumably with per mission – to look for work, and opted not to return because of his fear of violence. His alleged reason for staying away over an extended period of time and his failure to report his fear to authorities during this period were relevant considerations. {¶ 15} The trial court reasonably concluded that Longstreth ’s claim that he had escaped from DSFL under duress was not credib le, and its finding Longstreth guilty of escape was not against the manifest weight of the evidence. {¶ 16} The assignment of error is overruled.
III6 {¶ 17} The judgment of the trial court will be affirmed.

. . . . . . . . . . GRADY, P.J. and BROGAN, J., concur. (Hon. James A. Brogan, retired from the Sec ond District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio). Copies mailed to: Timothy J. Cole Jay A. Adams Hon. Gregory F. Singer