[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

v. DARRYL E. ADAMS Defendant-Appellant : : : : : : : : : : Appellate Case No. 28446

Trial Court Case No. 2019-CR-278 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 27th day of March, 2020.

. . . . . . . . . . . MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 009590 0, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, Dayto n, 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 convictio ns 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 pursu ant to R.C. 2913.03(A) and (D)(2). Raising two assignments of error, Adams argues tha t his conviction for escape should be reversed because the jury disregarded the mani fest weight of the evidence in finding him guilty, and because his trial counsel w as ineffective for failing to move for either a directed verdict or for judgment notwithstand ing the verdict. Adams’s arguments have no merit, and his convictions are therefore affi rmed. I. Facts and Procedural History {¶ 2} In Montgomery C.P. No. 2017-CR-2777, Adams was convicted on Apr il 6, 2018, for one count of trafficking in heroin, a fourth degree f elony 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 Pr ogram (“STOP”). Those admitted must reside in the program’s facility on South Gettysb urg Avenue for the duration of their placements and may not leave the premises une scorted. 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 prog ram 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

1 We refer to that version of R.C. 2925.03 which was effective f rom 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 o ther participants were occupied, Adams slipped into the driver’s seat and drove away i n the van. Id. at 109:19- 111:21. The security officer contacted his supervisor, who alt ered law enforcement personnel. See id. at 112:4-112:12. {¶ 4} One or more days later, officers with the Dayton Police Departm ent 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 Ad ams in Montgomery C.P. No. 2019-CR-278 as follows: Count 1, escape, a violation o f R.C. 2921.34(A)(1); Count 2, grand theft of a motor vehicle, a violation of R.C. 29 13.02(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 o n 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 se rve a term of 18 months in prison as a result of his violation of the cond itions of community control originally imposed in that case. Immediately after the conclus ion 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 Polic e Department. Transcript of Proceedings 136:1-148:11. He never mentioned the date, refe rring 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 a lley 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 nex t 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 warran t for his arrest on February 1, 2019; he was being held in jail at the time. Retur n of Service 1-2, Feb. 4, 2019.-4- serve 30 months in prison for his conviction on the charge of e scape, and 180 days in jail for his conviction on the charge of unauthorized use of a vehic le, with the terms to be served concurrently to each other, but consecutively to the sen tence in Case No. 2017- CR-2777. Adams timely filed his notice of appeal from the judg ment 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 th us he would be liable [sic] for an escape.” Appellant’s Brief 12. He offers no chal lenge to his conviction for

unauthorized use of a vehicle. See id. at 10-17. {¶ 8} Comparing the relatively relaxed procedures for supervising par ticipants residing in STOP’s facility on Gettysburg Avenue to the rigid p rocedures for securing inmates in a jail or a prison, Adams claims “there was no manda te 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 b eing acceptable.” Id. at 13. Essentially, Adams claims that although he was serving a c ourt-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 dete ntion” 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 evide nce, 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-Ohio525, ¶ 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; a nd determine whether in resolving conflicts in the evidence, the factfinder clearly los t 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 r eversed as being against the manifest weight of the evidence ‘only in the exceptional ca se 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 wheth er, and to what extent, to credit the testimony of particular witnesses,” the court “may d etermine which of several competing inferences suggested by the evidence should be prefer red.” (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 reckle ss 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 intr oduced 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] n ot leave the premises or-6- work assignments without authorization.’ ” Transcript of Procee dings 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 warra nt,” and a further warning that if Adams were to “abscond from [STOP], i.e., from the faci lity, [from a] community service worksite, [or from a] medical facility [or] any other o ff-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 Vo lunteers of America building in a van that he did not own or have permis sion to drive, and he acknowledged that he had been cautioned upon his entry into STO P that leaving without authorization would constitute a violation of his community con trol sanctions. See Transcript of Proceedings 154:20-156:4. He denied on cross-exa mination 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 supp osed to leave.” See

id. at 163:7-164:20. Nevertheless, he argues on appeal that he “d id 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 whil e 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 ins tead 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 convict ed 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 fac ility without authorization. Entry Granting S.T.O.P. 1; Transcript of Procee dings 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 t he 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 testifie d that he should have been charged with violating the conditions of his c ommunity control sanctions, rather than being charged with escape under R.C. 292 1.34(A)(1). Appellant’s Brief 16. He argues accordingly that his trial counsel was ine ffective for “fail[ing] to raise this seminal issue [during] closing [argument],” for “not ask[i ng] 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 facilit y.” R.C. 2921.01(E). The trial court provided substantially the same definition of “dete ntion” in its instructions to the jury. Transcript of Proceedings 210:19-210:23.-8- to jury deliberations,” and for not moving for “judgment notwit hstanding 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 Const itution; and (2) * * * defense counsel’s errors prejudiced the defendant.” Id. , citing Strickland at 687. Judicial “scrutiny of counsel’s performance must be highly defe rential,” 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 p rejudice, 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 m otions 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 couns el 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 i n a criminal trial, and Adams cannot demonstrate that he was prejudiced by counsel’s performa nce, given that counsel made the equivalent motion under Crim.R. 29. Adams’s second as signment 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 depa rture from the program while on a work assignment qualified as breaking “detention” fo r purposes of R.C. 2921.34(A)(1). Furthermore, his trial counsel did not render l ess 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