Opinion of the Warren County Court of Appeals B … the principal did not receive any aid or abetment in ... Opinion of the Warren County Court of Appeals ... court of appeals overruled

IN THE SUPREME COURT OF OHIO

07-2309The State of Ohio, : On Appeal from the Warren

County Court of Appeals,APPELLEE, : Twelfth Appellate District

vs. : C.A. Case No. CA2006-10-120

Shirley Brown,

APPELLANT.

MEMORANDUM IN SUPPORT OF JURISDICTION

OF APPELLANT SHIRLEY BROWN

Darin S. Barber (# 64022) (Counsel of Record)12 E. Warren St.Lebanon, Ohio 45036Telephone (513) 696-4555Facsimile (513) [email protected] for Appellant, Shirley Brown

Rachel A. Hutzel, Warren County ProsecutorAndrew Sievers (#63386), First Assistant Prosecutor (Counsel of Record)500 Justice DriveLebanon, Ohio 45036Telephone (513) 695-1325Counsel for Appellee, State of Ohio

EDDFC 1 3 ?6dT

CLERK OF CDURTSUPREME CQURTOFOHIO

TABLE OF CONTENTS

Page Number

EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC ORGREAT GENERAL INTEREST, INVOLVES A SUBSTANTIALCONSTITUTIONAL QUESTION, AND INVOLVES A FELONY ...................................... 2

STATEMENT OF THE CASE AND FACTS .................................................................... 4

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ............................................ 6

PROPOSITION OF LAW NO. I:

Where an accused is charged in a county with aiding andabetting but did not aid or abet the principal in the countyand the principal did not receive any aid or abetment in thecounty, then venue does not lie in the county because aidingand abetting is a substantive and independent offense ........................................ 6

PROPOSITION OF LAW NO. II:

Where an accused rendered aid to an escapee after he hadalready left the prison grounds and after the end of anyimmediate pursuit, the evidence is legally insufficient tosupport a conviction for aiding and abetting the escapebecause the aid was rendered after the escape had alreadybeen completed . ................................................................................................... 8

CONCLUSION .............................................................................................................. 10

CERTIFICATE OF SERVICE ........................................................................................ 10

APPENDIX

Judgment entry of the Warren County Court of Appeals ......................................A

Opinion of the Warren County Court of Appeals .................................................. B

1

EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC OR GREATGENERAL INTEREST, INVOLVES A SUBSTANTIAL CONSTITUTIONAL

QUESTION, AND INVOLVES A FELONY

This case presents the Court with an opportunity to guide lower courts on

where the proper venue is for a charge of complicity, specifically aiding and

abetting. In addition, the Court will be asked to interpret the escape statute, R.C.

2921.34, to determine whether an escape is complete once an escapee has

"broken free" or whether the offense is a "continuing" offense, especially in the

context of complicity. Lastly, the appellant, Ms. Brown, was convicted of a felony

in this case.

In this case, the court of appeals determined that venue lay where the

escape occurred, Warren County, although Ms. Brown did not give any aid or

abetment to the escapee in Warren County. The court of appeals ruled that

because the state was required to prove that an escape occurred and this

escape occurred in Warren County, then venue lay in Warren County.

However, Oh. Const. art. I, § 10 provides that "(i)n any trial, in any court,

the party accused shall be allowed ... a speedy public trial by an impartial jury of

the county in which the offense is alleged to have been committed." In addition,

the venue statute, R. C. 2901.12, provides that the trial of a criminal case in this

state shall be held in a court having jurisdiction of the subject matter, and in the

territory of which the offense or any element of the offense was committed.

The court of appeals' ruling undermines these provisions. Based on its

ruling, a person charged with aiding and abetting could be tried anywhere as long

as the principal had committed an element of the principal offense in that county.

2

The law is otherwise. Aiding and abetting is an independent and substantive

offense that does not require a conviction of the principal for a conviction of an

aider and abettor. A person charged with aiding and abetting should face the

charge in a county where the aid or abetment was either rendered or received.

Whether an escape under Ohio law is a "continuing" offense for purposes

of aiding and abetting is one of first impression in Ohio. Is the escape complete

once a prisoner leaves the prison grounds and there is no more immediate

pursuit, or does the escape continue? The court of appeals found that this issue

had to be resolved on a case by case basis, in essence finding that an escape is

a "continuing" offense. Federal courts have found that an escape is complete

once the escapee has broken physical control and there is no more immediate

pursuit.

Determining when an escape is complete is necessary for determining

whether an accused is guilty of aiding and abetting an escape. If the aid and

abetment is rendered after the escape is complete, then the accused would not

be guilty of aiding and abetting. In this case, the aid was rendered after the

escapee, Joseph Huffman, had already made it to Kentucky from Warren

County, Ohio in the absence of any immediate pursuit. This Court needs to give

guidance on this issue so that future cases can be consistently decided.

Lastly, this case involves a felony. Ms. Brown had never been in any

trouble before the event that resulted in the present conviction. She had worked

as a caregiver for adults with mental and developmental disabilities. She

3

received great satisfaction and fulfillment from her job. As a result of the felony

conviction, she is no longer able to do the work that she loves.

There was not much dispute as to the physical movements of Ms. Brown

and Huffman. The main evidentiary issues were Ms. Brown's mental state,

specifically, whether she knew that Huffman had escaped from prison and

whether her purpose was to help him elude authorities by taking him to relatives'

places and by letting him use her mobile phone. There was evidence negating

both these issues. A felony conviction carries great ramifications, and Ms. Brown

asks this Court to review the case to determine whether the evidence was legally

sufficient to convict her and whether the law was correctly interpreted and

applied.

Therefore, because this case is of public and great general interest,

involves a substantial constitutional question, and involves a felony, Ms. Brown

asks the Court to exercise jurisdiction in this case.

STATEMENT OF THE CASE AND FACTS

This case arises from the escape of Joseph Huffman from the Lebanon

Correctional Institution in Warren County, Ohio. Huffman was working on the

farm portion of the prison, which was unsecured. He took a truck that had a worn

cylinder and could be started without a key and drove to the Wal-Mart in West

Chester, Ohio in Butler County.

At the Wal-Mart, Huffman hitched a ride from a passerby, Adrian Dunn.

Dunn gave Huffman a ride to a tavern in Covington, Kentucky that was either

owned or ran by Huffman's sister, Mary Morgan. On the way to the tavern,

4

Huffman used Dunn's phone and called Krista Sweet, a friend of Appellant,

Shirley Brown. Sweet called Brown; Brown eventually talked to Huffman and met

him in Covington.

From Covington, Brown gave Huffman a ride to Sweet's apartment

in Cincinnati. Brown left Huffman at Sweet's apartment, went to her apartment,

and retrieved some clothes that she had purchased for Huffman. Earlier, these

clothes had been mailed to the prison but were returned because Huffman was

not allowed to accept them. Brown returned to Sweet's apartment and gave

Huffman a ride back to Kentucky.

While in Kentucky, Brown gave Huffman a ride to his father's nursing

home and to his sister's house. While giving Huffman a ride, Brown let him use

her mobile telephone. Eventually, authorities located Huffman at another sister's

home in Kentucky and apprehended him on the day after his escape. Brown was

present at the time of his apprehension.

Brown was indicted in Warren County for escape, a felony of the third

degree. Pursuant to the bill of particulars, she was tried for complicity to escape

for allegedly aiding and abetting Huffman's escape from prison.

The trial court denied Brown's motion for a judgment of acquittal at the

close of the state's case in chief and at the close of all the evidence. A jury found

her guilty, and the trial court sentenced her to one year in prison.

Brown appealed the judgment of conviction to the court of appeals and

assigned as error the overruling of her motion for a judgment of acquittal. The

5

court of appeals overruled the assignment of error and affirmed the judgment of

conviction.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. 1: Where an accused is charged in a county withaiding and abetting but did not aid or abet the principal in the county andthe principal did not receive any aid or abetment in the county, then venuedoes not lie in the county because aiding and abeiting is a substantive andindependent offense.

Oh. Const. art. 1, § 10 provides that "(i)n any trial, in any court, the party

accused shall be allowed ... a speedy public trial by an impartial jury of the

county in which the offense is alleged to have been committed." R.C. 2901.12 is

the venue statute and provides:

(A) The trial of a criminal case in this state shall be held in a courthaving jurisdiction of the subject matter, and in the territory of whichthe offense or any element of the offense was committed.

... (G) When it appears beyond a reasonable doubt that an offenseor any element of an offense was committed in any of two or morejurisdictions, but it cannot reasonably be determined in whichjurisdiction the offense or element was committed, the offender maybe tried in any of those jurisdictions.

(H) When an offender, as part of a course of criminal conduct,commits offenses in different jurisdictions, the offender may be triedfor all of those offenses in any jurisdiction in which one of thoseoffenses or any element of one of those offenses occurred..."

State v. Rankin, 2005-Ohio-6165, 2005 Ohio App. LEXIS 5537 (Ohio Ct.

App. Clinton County) states that "(t)he purpose of the venue requirement is to

give a defendant the right to be tried in the vicinity of the alleged criminal activity

and to limit the state from indiscriminately seeking a favorable location for trial

that might be an inconvenience or disadvantage to the defendant." For venue to

6

be proper, there must be a significant nexus between one or more of the

elements of an offense and the county in which the charge is brought. State v.

Draggo, 65 Ohio St. 2d 88, 418 N.E.2d 1343 (1981).

R.C. 2923.03(A)(2) defines complicity as "(n)o person, acting with the kind

of culpability required for the commission of an offense, shall...aid or abet

another in committing the offense." R.C. 2923.03(F) provides that "(w)hoever

violates this section is guilty of complicity in the commission of an offense, and

shall be prosecuted and punished as if he were a principal offender. (emphasis

supplied). Aiding and abetting has been characterized as a substantive and

independent offense so that aiders and abettors may be prosecuted and

convicted as principals without the trial or conviction of the principal offender.

State v. Graven, 52 Ohio St. 2d 112, 369 N.E.2d 1205 (1977).

From the foregoing, it is clear that aiding and abetting is an offense

separate and apart from the underlying or principal offense. In order for venue to

lie in a county for a prosecution of a charge of aiding and abetting, an element of

the offense must have occurred in the county. To hold otherwise would be

contrary to Ohio's Constitution and the venue statute.

In the instant case, the court of appeals misapplied the law and found that

venue lay in Warren County because that is where the escape occurred.

However, no aid or abetment was ever given or received in Warren County. The

fact that the principal offense may have occurred in a county is of no

consequence because aiding and abetting is an independent and substantive

offense that stands on its own two legs.

7

Proposition of Law No. II: Where an accused rendered aid to an escapeeafter he had already left the prison grounds and after the end of anyimmediate pursuit, the evidence is legally insufficient to support aconviction for aiding and abetting the escape because the aid wasrendered after the escape had already been completed.

R.C. § 2921.34(A)(1) defines escape as:

"(n)o person, knowing the person is under detention or beingreckless in that regard, shall purposely break or attempt to breakthe detention, or purposely fail to return to detention, eitherfollowing temporary leave granted for a specific purpose or limitedperiod, or at the time required when serving a sentence inintermittent confinement."

Until this case, no Ohio courts have decided the question of whether an

escape under Ohio law is a "continuing" offense for purposes of aiding and

abetting an escape. The court of appeals found that "these cases must be

resolved on a case by case basis based on the facts. At least so long as an

escapee is initially evading recapture, those who knowingly assist said escapee

may be charged with aiding and abetting the escape." This holding is ambiguous

and offers no guidance as to when an escape is complete. An escapee will

always be evading recapture. At what point does it progress past "initially"?

A better decision is found in Orfh v. United States, 252 F. 566 (4th Cir.

1918). The defendant was convicted of two counts of an indictment: the first

count charged him with aiding and abetting a prisoner's escape from lawful

custody and the second count charged him with harboring and concealing an

escaped convict (the prisoner). In concluding that the trial court should have

granted a motion for a directed verdict of acquittal on the first count (aiding and

abetting), the court stated the following:

a

"When the physical control has been ended by flight beyondimmediate active pursuit, the escape is complete. After that aid tothe fugitive is no longer aiding his escape." Id. at 568.

Another case dealing with assisting an escape is United States v.

Smithers, 27 F.3d 142 (5th Cir. 1994). In reversing the defendant's convictions for

assisting and conspiring in a prisoner's escape, the court found that part of the

definition of the crime of assisting escape is that it cannot occur after immediate

pursuit ends. The court noted that "at some point an escape is complete and

assisting the fleeing felon may constitute the crime of harboring a fugitive but not

assisting the escape." Id. at 143.

Although Smithers and Orth are federal cases dealing with federal

statutes, they are instructive in that one cannot assist an escape after the escape

is complete, which completion occurs after immediate or active pursuit ends.

In Ohio, the breaking of detention as prohibited by R.C. 2921.34(A) is the

termination of the status of being in legal custody, either with or without the use

of force, and when it is done purposely the offense of escape has been

committed. State v. Smith, 29 Ohio App. 3d 194, 504 N.E.2d 1121 (Ohio Ct. App.

Cuyahoga County 1985). In another complicity to escape case, it was stated that

a person is not an aider and abettor where that person's conduct, in relation to

the offense, takes place wholly after the offense is committed. State v. Wolfe,

2000 Ohio App. LEXIS 5782 (Ohio Ct. App. Madison County).

An escape is complete when the escapee purposely terminates the status

of being in legal custody. The better rule is that one cannot aid and abet an

escape where any aid or abetment is rendered after the escapee has terminated

9

his status of being in legal custody, i.e. left the prison, and there is no longer any

immediate, active pursuit.

CONCLUSION

For the reasons discussed above, this case involves matters of public and

great general interest, involves a substantial constitutional question, and involves

a felony. The appellant requests that this Court accept jurisdiction in this case so

that the important issues presented will be reviewed on the merits.

Respectfully submitted,

Darin S. Barber (64022)Counsel for Appellant12 East Warren StreetLebanon, Ohio 45036Telephone (513) 696-4555Facsimile (513) 696-4556

CERTIFICATE OF SERVICE

I certify that a copy of this Memorandum in Support of Jurisdiction wassent by ordinary U.S. mail to counsel for appellee, Andrew Sievers, FirstAssistant Prosecutor, and Rachel Hutzel, Warren County Prosecutor, 500 JusticeDrive, Lebanon, Ohio 45036 on December 13, 2007.

Darin S. BarberCounsel for Appellant

10

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

GCIURTOFAppEALSWARRENCOUNqy

FILED

OCT2szoo7

1' gFaeg, Clerkii;t3ANON OHIO

STATE OF OHIO,

Plaintiff-Appellee,

- vs -

CASE NO. CA2006-10-120

JUDGMENT ENTRY

SHIRLEY BROWN,

Defe n d a nt-Ap pel l a nt.

The assignment of error properly before this court having been ruled upon, it isthe order of this court that the judgment or final order appealed from be, and the samehereby is, affirmed.

It is further ordered that a mandate be sent to the Warren County Court ofCommon Pleas for execution upon this judgment and that a certified copy of thisJudgment Entry shall constitute the mandate pursuant to App.R. 27.

Costs to be taxed in compliance with App.R. 24.

esiding JWdge

Walsh, Judge

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IN THE COURT OF APPEALS w^F 1 L D^

TWELFTH APPELLATE DISTRICT OF OHIO OCT 2 9 2007

WARREN COUNTY ffamrh2 J$ , ClerkLEHSNN ®HIO

STATE OF OHIO,

Plaintiff-Appellee, : CASE NO. CA2006-10-120

- vs - OPINION10/29/2007

SHIRLEY BROWN,

Defendant-Appellant.

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEASCase No. 06CR23361

Rachel A. Hutzel, Warren County Prosecuting Attorney, Andrew L. Sievers, 500 Justice Drive,Lebanon, OH 45036, for plaintiff-appellee

Darin S. Barber, 12 East Warren Street, Lebanon, OH 45036, for defendant-appellant

POWELL, J.

{11} Defendant-appellant, Shirley Brown, appeals her conviction in the Warren

County Court of Common Pleas on one count of complicity to escape.' For the reasons set

forth below, we affirm appellant's conviction.

{¶2} This case arises out of appellant's involvement with Joseph Huffman, an inmate

of the Lebanon Correctional Institution in Warren County, Ohio, following his unauthorized

1. Pursuant to Loc.R. 6(A), we have sua sponte removed this appeal from the accelerated calendar for purposesof issuing this opinion.

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Warren CA2006-10-120

departure from prison. On a Friday evening in June 2006, Huffman, who was working on the

unsecured farm area of the prison, took a state-owned truck and proceeded to drive off the

premises. Huffman drove to a Wai-Mart located in Butler County, Ohio, whereupon he exited

the truck and asked a passerby, Adrian Dunn, for a ride. Dunn agreed to drive Huffman to a

tavern in Covington, Kentucky, and on the way there, allowed Huffman to use his cellular

telephone. Huffman called one of appellant's friends, Krista Sweet, who in turn called

appellant and put her in contact with Huffman.

{13} Appellant had become acquainted with Huffman while he was incarcerated.

She wrote him letters and visited him on a regular basis. On the evening in question,

appellant agreed to meet Huffman in Covington, Kentucky shortly after speaking with him.

She picked him up at a mutual meeting place and drove him to Sweet's apartment in

Cincinnati, Ohio. While at Sweet's apartment, appellant provided Huffman with a change of

clothes which she had previously purchased for him while he was incarcerated.

{14} The two then left the apartment, and appellant drove Huffman back to Kentucky

to see various family members. Appellant also allowed Huffman to use her cellular telephone

to contact family members and friends while she drove. The two spent the night at the home

of one of Huffman's sisters, and the next day, appellant continued driving Huffman to see

family members. They eventually made their way to the home of another of Huffman's sisters

that night, where they were both apprehended by authorities.

{15} Appellant was later indicted on one third-degree felony count of complicity to

escape based upon her actions in assisting Huffman following his unauthorized departure

from the Lebanon Correctional Institution. Ajury trial was held on September 14, 2006, at the

conclusion of which appellant was found guilty and sentenced to one year in prison.

Appellant now appeals her conviction, advancing one assignment of error.

{16} Assignment of Error No. 1:

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{17} "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT DENIED THE MOTION FOR JUDGMENT OF ACQUITTAL THAT

WAS MADE AT THE CLOSE OF THE STATE'S CASE IN CHIEF AND RENEWED AT THE

CLOSE OF ALL THE EVIDENCE."

{18} In her sole assignment of error, appellant advances three arguments in support

of her contention that the trial court erred in denying her Crim. R. 29 motion for acquittal. First,

appellant argues insufficient evidence was presented at trial to support her conviction for

complicity to escape, where the evidence indicated appellant rendered assistance to Huffman

after he left prison grounds and after an immediate pursuit of Huffman had ended. Second,

appellant argues venue did not lie in Warren County for the charged offense because none of

her actions in assisting Huffman occurred in Warren County. Finally, appellant argues

insufficient evidence was presented to support her conviction because there was no in-court

identification of her at trial. We find each of appellant's arguments without merit.

{19} Pursuant to Crim.R. 29, a court shall not enter a judgment of acquittal unless

"the evidence is insufficient to sustain a conviction of [the] offense "' "." A sufficiency of the

evidence argument challenges whether the state has presented adequate evidence on each

element of the offense to allow the case to go to the jury or to sustain the verdict as a matter

of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52.

{¶10} In reviewing the sufficiency of the evidence to support a criminal conviction, the

reviewing court is "to examine the evidence admitted at trial to determine whether such

evidence, if believed, would convince the average mind of the defendant's guilt beyond a

reasonable doubt." State v. Jenks (1991), 61 Ohio St.3d 259, 273. After viewing the

evidence in a light most favorable to the prosecution, the relevant inquiry is whether any

rational trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt. State v. Smith, 80 Ohio St.3d 89, 113, 1997-Ohio-355. In considering the

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sufficiency of the evidence, a reviewing court must give "full play to the responsibility of the

trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts." Jackson v. Virginia (1979), 443 U.S.

307, 319, 99 S.Ct. 2781. See, also, State v. White, Franklin App. No. 06AP-607, 2007-Ohio-

3217, ¶26.

{711} We first address appellant's argument that the state failed to produce sufficient

evidence to prove she aided and abetted Huffman in committing escape. Appellant contends

the evidence presented at trial does not support a finding that she aided and abetted

Huffman's escape because Huffman had completed the crime before appellant came into

contact with him on the evening in question. We disagree.

{112} Pursuant to R.C. 2923.03(A)(2), "[n]o person, acting with the kind of culpability

required for the commission of an offense, shall "' [a]id or abet another in committing the

offense "''." Ohio courts have consistently defined the term "aid and abet" to mean to

assist, incite or encourage. State v. Wolfe (Dec. 11, 2000), Madison App. No. CA99-11-029,

at 35, citing Horstman v. Farris (1999), 132 Ohio App.3d 514, 527. "Mere approval or

acquiescence, without expressed concurrence or the doing of something to contribute to an

unlawful act, is not an aiding and abetting of the act." Id., quoting State v. Stepp (1997), 117

Ohio App.3d 561, 568.

{113} Further, "[w]ithout previous connection with the transaction, one is not an aider

and abettor unless he knowingly does something which he ought not to do, or omits to do

something he ought to do, which assists or tends in some way to affect the doing of the thing

which the law forbids; in order to aid or abet, whether by words, acts, encouragement, support

or presence, there must be something more than a failure to object unless one is under a

legal duty to object." Id. at 35-36, quoting Smith v. State (1931), 41 Ohio App. 64, 68.

Significantly, this court has stated that "[a] person is not an aider and abettor where that

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person's conduct, in relation to the offense, takes place wholly after the offense is committed."

Id. at 36.2

{¶14) Escape is codified under R.C. 2921.34(A)(1), which provides that "[n]o person,

knowing the person is under detention or being reckless in that regard, shall purposely break

or attempt to break the detention, "**." R.C. 2921.01(E), in relevant part, defines "detention"

as "* * *; confinement in any public facility for custody of persons charged with or

convicted of crime * * " "

(¶15) The Ohio General Assembly has not explicitly defined escape as a continuing

offense, or as complete at any particular point in time. In addition, neither the Ohio Supreme

Court nor any Ohio appellate district appears to have addressed this issue, though courts

have interpreted the term "detention" to determine under what circumstances an escape

occurs. See, e.g., State v. Shook (1975), 45 Ohio App.2d 32, 34-35. These cases are

instructive to our analysis of whether escape is a continuing offense or at what point in time

the offense is completed.

(¶16) In State v. Smith (1985), 29 Ohio App.3d 194, paragraph one of the syllabus, for

instance, the Eighth District Court of Appeals held that "[t]he breaking of detention as

prohibited by R.C. 2921.34(A) is the termination of the status of being in legal custody, either

with or without the use of force, and when it is done purposely the offense of escape has

been committed." In applying this definition to the facts of the case, the court held that a

2. Where there is "any prior association," however, "a person's participation in the criminal intent may be inferredfrom their presence, companionship, and conduct both before and after the offense is committed, as shownthrough either direct or circumstantial evidence." Wolfe, at 36. See, also, State v. Jackson, Franklin App. No.03AP-273, 2003-Ohio-5946, ¶32; State v. Cartellone (1981), 3 Ohio App.3d 145, 150; State v. Pruett (1971), 28Ohio App.2d 29, 34. In addition, "aiding and abetting may also be established by overt acts of assistance such asdriving a getaway car or serving as a lookout." Jackson, quoting Cartettone. See, also, State v. Trocodaro(1973), 36 Ohio App.2d 1, 6("One may be found to be an aider and abettor in the commission of a crime eventhough he was not actually present at the time the crime was committed; such presence may take the form ofconstructive presence. Examples of such are drivers of vehicles used in perpetrating crimes[;] lookouts duringthe commission of crimes; and persons who set up schemes for obtaining entry by others into premises which aresites for criminal acts." (Internal citations omitted.)).

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juvenile who had been ordered to reside in a group home following her adjudication as

delinquent, was being "detained" such that she could be charged with escape when she left

the premises without permission. Id. at 195.

{¶17} Similarly, other Ohio courts have made clear that a detainee need not break

physical restraint to violate R.C. 2921.34. In State v. Shook, the Third District Court of

Appeals explained that "[t]he word 'detention' is an abstract term which signifies, not the

place or means of confinement, but a status. It constitutes the state of being held in some

form of legal custody. ""* The word 'break' as used in the statute means only the termination

of being in legal custody, either with or without the use of force, and when it is done

purposely, the crime proscribed by the statute is committed. ""' The crime however, is notin

breaking out of the facility but in willfully terminating the status of being detained therein."

Shook, 45 Ohio App.2d at 34-35. (Emphasis added).

{¶18} However, the United States District Court for the Sixth Circuit has recently

addressed escape pursuant to Kentucky law, concluding that the offense is a continuing

offense. See United States v. Lancaster (C.A.6, Aug. 31, 2007), _F.3d_, 2007 WL

2457448. Like Ohio's escape statute, the Kentucky statute at issue in Lancaster has not been

construed by Kentucky's highest state court as complete once a prisoner impermissibly leaves

custody. Id. at *6. In reaching its conclusion, the court examined the law of escape in various

other jurisdictions, noting the majority rule is that "the crime of escape is considered a

continuing offense." Id.3

3. The court cited the following cases in summarizing the majority view: Harbin v. State (Ala.App.1991), 581So.2d 1263, 1266; Lacey v, State (Alaska App.2002), 54 P.3d 304, 307; McCoy v. State (De1.1988), 542 A.2d1215; Colo. Rev,Stat 18-8-201(2) (Escape' is deemed to be a continuing activity commencing with the conceptionof the design to escape and continuing until the escapee is returned to custody or the attempt to escape isthwarted or abandoned."); People v. Miller (1987), 157 III.App.3d 43, 46; State v. Francois (Iowa 1998), 577N.W.2d 417, 420; State v. Burnett (1972), 292 Minn. 484; State v. Jones (Mo.App.1977), 556 S.W.2d 736, 738;State v. Stul1 (1996), 112 Nev. 18, 22; State v. Martinez (1989), 109 N.M. 34, 37; State v. White (1974), 21N.C.App. 173, 177; State v. Campbett (Nov. 21, 2006), Tenn.App.No. E2005-01849, at'23-24; State v. Lewis(1998), 167 Vt. 533, 536; Parent v. State (1966), 31 Wis.2d 106, 109-110.

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{¶19} The United States Supreme Court has also concluded that escape pursuant to

federal law is a continuing offense. See United States v. Bailey (1980), 444 U.S. 394, 413,

100 S.Ct. 624. In Baitey, the court stated, "we think it clear beyond peradventure that escape

from federal custody as defined in §751(a) is a continuing offense "". Given the continuing

threat to society posed by an escaped prisoner, 'the nature of the crime involved is such that

Congress must assuredly have intended that it be treated as a continuing one."' Id., quoting

Toussie v. United States (1970), 397 U.S. 112, 115, 90 S.Ct. 858.

{¶20} Other federal and state courts, however, have found the United States Supreme

Court's holding in Bailey inapplicable to cases in which a defendant is charged with aiding and

abetting escape by rendering aid to an escapee after he has left custody. Such cases have

reasoned that laws proscribing harboring a fugitive would be rendered meaningless if escape

were to be considered a continuing offense, and therefore, have attempted to limit escape to

a specific time frame such as while an escapee is under "immediate pursuit" or has not

reached "temporary safety." See, e.g., United State v. Smithers (C.A.5, 1994), 27 F.3d 142,

144-145; Orth v. United States (C.A.4, 1918), 252 F. 566, 568; United States v. DeStefano

(C.A.1, 1995), 59 F.3d 1, 4-5; United States v. Vowielf (C.A.9, 1989), 869 F.2d 1264, 1269;

Stull, 112 Nev. at 22.

(¶21) After examining the law of escape under federal law, Ohio law and that of other

states, we find that these cases must be resolved on a case by case basis based on the facts.

At least so long as an escapee is initially evading recapture, those who knowingly assist said

escapee may be charged with aiding and abetting the escape. Accordingly, we find appellant

was properly charged with aiding and abetting Huffman's escape based upon her actions in

assisting Huffman by furnishing him with a previously purchased change of clothes following

his departure from prison grounds. It is reasonable to infer from this fact that she was aware

he intended to escape service of the remaining 18 months of his prison term. Moreover, after

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reviewing the record, we find sufficient evidence was presented at trial to support a finding

that appellant's continuing actions assisting Huffman upon meeting up with him on the night in

question aided and abetted his escape.

{¶22} The record indicates that prison officials became aware of Huffman's absence

from the prison farm at approximately 6:30 p.m. Ohio State Highway Patrol investigators were

contacted shortly thereafter, at approximately 7:15 p.m., and immediately began pursuing

Huffman by investigating locations in Kentucky where Huffman might have gone. Appellant

indicated in a statement to authorities that she met up with Huffman at approximately 8:00

p. M.

{123} The record also indicates that upon meeting Huffman at an agreed-upon

location in Covington, Kentucky, appellant transported Huffman to Sweet's apartment, where

she provided him with a change of clothes. Appellant had previously purchased these clothes

for Huffman while he was incarcerated. In addition, the record indicates appellant allowed

Huffman to use her cellular telephone to contact family members and friends, and provided

him with transportation to various other locations in Kentucky. The evidence presented at trial

demonstrates that such actions occurred less than two hours after Huffman was found to be

missing from the prison farm and while law enforcement officials were actively pursuing him.

{124} After being apprehended, appellant admitted to authorities that she knew

Huffman had 18 months remaining on his prison sentence at the time she came into contact

with him on the evening in question, and should have known his departure from prison was

unauthorized. In addition, the evidence presented at trial indicates that Sweet called

appellant on the morning following Huffman's escape to inform appellant that she had seen

on the news that Huffman had "broken out of prison." Nevertheless, the record indicates that

appellant continued to allow Huffman to use her cellular telephone to contact family members,

and accompanied Huffman to his sister's home in Kentucky, where the two were eventually

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apprehended by authorities.

{¶25} Appellant does not dispute the jury's fact finding that her actions on the night in

question assisted Huffman in avoiding recapture, nor does she dispute the jury's fact finding

that she knew or should have known he had escaped from prison at that time. After a careful

review of the record, we find the state produced sufficient evidence as to each of the

elements of complicity to escape, such that a reasonable trier of fact could conclude that

appellant was guilty of the offense beyond a reasonable doubt.

{126} Based upon our resolution of appellant's first argument, we likewise find

appellant's second argument concerning venue to be without merit. Appellant argues venue

was improper in Warren County because none of her actions in assisting Huffman occurred in

Warren County. R.C. 2901.12(A) provides, "[t]he trial of a criminal case in this state shall be

held in a court having jurisdiction of the subject matter, and in the territory of which the

offense or any element of the offense was committed." For venue to be proper, there must be

a "significant nexus" between one or more of the elements of an offense and the county in

which the charge is brought. State v. Draggo (1981), 65 Ohio St.2d 88, 92. With respect to

complicity, R.C. 2923.03(F) provides that "[w]hoever violates this section is guilty of complicity

in the commission of an offense, and shall be prosecuted and punished as if he were a

principal offender. A charge of complicity may be stated in terms of this section, or in terms of

the principal offense."

{¶27} Here, appellant was charged with complicity to escape pursuant to R.C.

2923.03(A)(2) and R.C. 2921.34(A)(1). Accordingly, the state was required to prove appellant

aided and abetted Huffman in the commission of escape, which necessarily required the state

to prove an escape occurred. It is undisputed that Huffman escaped from Lebanon

Correctional Institution, located in Warren County, Ohio. Moreover, as we have previously

found, appellant's actions on the night in question, including providing him with transportation,

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a change of clothes and a cellular telephone, assisted Huffman in committing escape, as he

avoided recapture.

{¶28} Accordingly, we find a significant nexus exists between one or more elements of

appellant's complicity to escape charge and Warren County. We therefore find that venue

was proper in Warren County.

{¶29} Finally, we reject appellant's third argument that the state failed to prove

appellant's identity beyond a reasonable doubt. The state has a duty to present evidence,

beyond a reasonable doubt, as to each and every element of the crime as set forth in the

indictment. See State v. Kline, Warren App. No. CA2004-10-125, 2005-Ohio-4336, ¶5.

Besides ptoof of each element of an offense, the state must also demonstrate the identity of

the defendant as the perpetrator beyond a reasonable doubt. State v. Cook (1992), 65 Ohio

St.3d 516, 526.

{130} Ohio courts have'9ong held that circumstantial evidence is sufficient to sustain a

conviction if that evidence would convince the average mind of the defendant's guilt beyond a

reasonable doubt," as circumstantial evidence is accorded equal weight and given the same

deference as direct evidence. State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, ¶75,

quoting State v. Heinish (1990), 50 Ohio St.3d 231, 238. Moreover, Ohio courts have

specifically held that the identity of a defendant as the perpetrator of the crime in question

may be proven by indirect evidence. See, e.g., State v. Baxla (June 13, 1988), Highland App.

No. 656, at "3. For instance, witness testimony referring to the "defendant," coupled with a

demonstration that "the person committing the offense was arrested and charged and the

defendant appeared at trial in response to the charge," has been found to "constitute

sufficient evidence of identification to withstand [a] Crim.R. 29(A) motion for judgment of

acquittal." Id. at "3, "4.

{¶31} Here, the record indicates that appellant was present at trial as Shirley Brown

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and that the evidence presented at trial referred to appellant as Shirley Brown throughout its

entirety. For instance, Trooper Wynn Blybeog testified regarding telephone calls made to and

from "Shirley Brown's" cellular telephone, which authorities were monitoring on the night in

question after having received an anonymous tip that appellant had met up with Huffman.

While testifying as to such calls, Trooper Blybeog indicated that he had an "opportunity to

speak with the defendant after she was apprehended in Kentucky," during which she

explained to him one of the calls made from that telephone. Notably, Trooper Blybeog's

interview was recorded and played at trial, after which Trooper Blybeog confirmed that the

recording fairly and accurately represented his conversation with "Shirley Brown."

{132} Appellant's sister, Bonnie Blevins, also testified during appellant's trial regarding

the night in question. She indicated that "Shirley Brown" was her sister, and responded to

questions regarding her sister's actions on the night in question and in the following days.

She testified that on the Saturday following Huffman's initial escape, her sister was crying and

told her that she had seen Huffman's picture on television but that "she didn't do anything."

{133} Similarly, appellant's close friend, Krista Sweet, also testified at trial, responding

to questions referring to "Shirley Brown" and her interaction with Huffman on the night in

question. Sweet testified that Huffman originally called her that night trying to reach "Shirley."

Sweet testified that she put Huffman in contact with "Shirley" and thereafter allowed the two of

them to come to her apartment. She also testified that she called "Ms. Brown" the next

morning, and told her that she had seen on the news that Huffman had broken out of prison.

Sweet indicated that appellant was very upset at the time and did not know what to do.

{¶34} We find the foregoing circumstantial evidence, if believed, was sufficient to

support a finding that appellant was the individual who committed the offense in question,

beyond a reasonable doubt. Accordingly, we find appellant's argument as to this issue

without merit.

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{¶35} Based upon the foregoing, we find the trial court did not err in denying

appellant's Crim.R. 29 motion, as sufficient evidence was presented at trial to support a

finding that appellant was guilty of complicity to escape beyond a reasonable doubt.

Appellant's sole assignment of error is therefore overruled.

{¶36} Judgment affirmed.

BRESSLER, P.J. and WALSH, J., concur.

This opinion or decision is subject to further editing by the Supreme Court ofOhio's Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court's web site at:http://www.sconet.state.oh.us/ROD/documents/. Final versions of decisions

are also available on the Twelfth District's web site at:http://www.twelfth.courts.state.oh.us/search.asp

Documents

Opinion of the Warren County Court of Appeals B … the principal did not receive any aid or abetment in ... Opinion of the Warren County Court of Appeals ... court of appeals overruled