State v. Santiago , 2011 Ohio 3058 ( 2011 )


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  • [Cite as State v. Santiago, 
    2011-Ohio-3058
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 95516
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    ARCADIO F. SANTIAGO, JR.
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-529881
    BEFORE: Kilbane, A.J., Celebrezze, J., and S. Gallagher, J.
    RELEASED AND JOURNALIZED: June 23, 2011
    ATTORNEY FOR APPELLANT
    Joseph Vincent Pagano
    P.O. Box 16869
    Rocky River, Ohio 44116
    ATTORNEYS FOR APPELLEE
    William D. Mason
    Cuyahoga County Prosecutor
    Carrie Heindrichs
    Assistant County Prosecutor
    The Justice Center - 8th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    MARY EILEEN KILBANE, A.J.:
    {¶ 1} Defendant-appellant, Arcadio Flores Santiago, Jr. (Santiago), appeals from his
    convictions for attempted murder and felonious assault.    For the reasons set forth below, we
    affirm.
    {¶ 2} On October 16, 2009, Santiago was indicted for attempted murder in violation
    of R.C. 2903.02(A), one count of felonious assault in violation of R.C. 2903.11(A)(1), and one
    count of felonious assault in violation of R.C. 2903.11(A)(2), in connection with the August
    29, 2009 stabbing of DeShawn Willis (Willis).     He pled not guilty and the matter proceeded
    to a jury trial on June 9, 2010.
    {¶ 3} For its case, the State presented the testimony of Willis, his wife, Tracy
    Patterson (Patterson), and Cleveland Metropolitan Housing Authority (CMHA) police officers
    Marc Ortiz (Sergeant Ortiz), Ryan Allen (Officer Allen), and Stephen Kolb (Officer Kolb).
    {¶ 4} Willis testified that he, Patterson, and her children, ages 10, 9, and 6, live in a
    CMHA unit, located at 2840 Central Avenue, in Cleveland.          The morning     of August 28,
    2009, Willis visited his mother, who lives on Division Avenue.      Later, at around 7:00 p.m.,
    he visited his aunt, who lives on St. Clair Avenue near East 190th Street.       Willis returned
    home around 7:45 p.m.       At that time,   Santiago and his significant other, known as Hazel
    Flores (Hazel), were there with the children.      Willis, Hazel, and Santiago drank beer and
    1
    double shots of vodka while the children played upstairs.    According to Willis, Santiago had
    marijuana, and he decided to go to the store to buy a cigarello, to use as a “shell” for smoking.
    Willis and Santiago walked to a nearby gas station and bought the cigarello.        When they
    returned, they smoked the marijuana-filled cigarello, commonly referred to as a “blunt,” and
    continued to drink.
    {¶ 5} Willis further testified that Santiago asked him if he knew anyone who could
    sell them more marijuana.     A short time later, Santiago saw someone “that he was locked up
    in jail with” and invited that individual and the people with him into the apartment.    A short
    time later, Santiago and Willis made a second trip to the store to buy another cigarello.
    Hazel, a transgendered individual, is identified in the transcript as Felix
    1
    Quinones.
    When they returned, Hazel and one of the children informed them that the men had robbed
    Hazel.
    {¶ 6} Hazel accused Willis of setting up the robbery, and Santiago began to threaten
    Willis.    Santiago then called for someone to pick him up.         When his ride arrived, Willis
    walked him and Hazel to the car.       According to Willis, Santiago drew near as if to shake his
    hand, then stabbed him in the lower abdomen with a knife, a serrated four-inch blade.       Willis
    ran away, and Santiago chased him, threatening to kill him.        Willis was taken to the hospital
    by ambulance.      He required surgery and remained hospitalized for eight days.
    {¶ 7} Willis admitted on cross-examination that he is not listed as a tenant of the
    CMHA premises.        He also admitted that he has a burglary conviction.
    {¶ 8} Patterson testified that Santiago is her cousin.   On August 28, 2009, she spoke
    to him on the phone, and he indicated that he was going to his sister’s house.       Santiago then
    asked if he and Hazel could instead come to her house, and she agreed.        They arrived around
    4:00 p.m., and the group drank.      After a while, Patterson’s best friend came over and invited
    her out.     The group subsequently agreed that Santiago and Hazel would stay with the
    children, and Patterson would go out.      Later, after receiving a phone call asking her to return
    home, Patterson observed that Willis had been stabbed.
    {¶ 9} Sergeant Ortiz testified that he went to Patterson’s apartment in response to a
    call that someone had been stabbed.        At that time, Willis had been taken to MetroHealth
    Medical Center.      Patterson advised Sergeant Ortiz that “Arcadio” and “Hazel” had been
    invited to the unit, and one of them stabbed Willis after a dispute over money.        There was
    no mention of a robbery prior to the stabbing however.
    {¶ 10} Sergeant Ortiz further testified that Hazel was still at the unit, but she declined
    to speak with him.     Santiago was not at the scene.
    {¶ 11} Officer Allen testified that he arrived just as Willis was being transported to the
    hospital.    Hazel was at the scene, but Santiago had left.    Officer Allen attempted to locate
    Santiago, but he was unable to do so.
    {¶ 12} Officer Kolb testified that approximately one week after this incident, he spoke
    with Willis and Patterson and obtained verbal statements from them.          Patterson stated that
    Santiago had been at the unit, and Willis identified Santiago as his assailant.
    {¶ 13} Santiago elected to present evidence and offered the testimony of Felix
    Quinones, a.k.a. Hazel.     Hazel testified that Patterson called Santiago and invited them to her
    apartment.     They arranged for a ride and arrived at around 5:00 p.m.     The group sat around
    and drank beer.    Around 8:00 p.m., another friend of Patterson’s arrived and invited her to go
    out.   Patterson asked Santiago to stay there and watch her children, and he agreed to do so.
    Before leaving, Patterson explained that Willis may come over and she asked them to let him
    into the house.    Patterson then left.
    {¶ 14} According to Hazel, Willis arrived about ten minutes later.        Five minutes after
    that, five other men arrived and Willis let them into the apartment.         Hazel stated that Willis
    knew these men, and he spoke with them while she and Santiago spoke privately.             Willis then
    asked Santiago to go to the store with him to buy more beer.        He agreed, but told Willis that
    the five other men could not remain at the apartment while they were gone.              Willis agreed
    and the men left.
    {¶ 15} Hazel testified that Willis watched as Santiago put money into her pocket.
    Willis and Santiago then left to go to the store.    A few minutes later, the five men returned
    and demanded money.           Two of the men grabbed Hazel and one of them pulled out a gun.
    The men took the money and pushed her to the ground.          They left a short time later.
    {¶ 16} Hazel further testified that the police arrived, and she reported the robbery but
    did not use her real name because she feared Willis.       They left at around midnight.
    {¶ 17} The   jury     subsequently   convicted    Santiago    of    all   offenses.      On
    September 8, 2010, the trial court merged the three offenses and sentenced him to six years of
    imprisonment, to be served consecutively to his three-year sentence imposed in an unrelated
    matter.
    {¶ 18} Santiago now appeals, assigning five errors for our review.
    ASSIGNMENT OF ERROR ONE
    “Appellant was denied a fair trial when the trial court denied his request for a
    continuance to obtain testimony that would have impeached the credibility of
    the alleged victim.”
    {¶ 19} Within this assignment of error, Santiago complains that the trial court erred in
    refusing to continue the matter in order to allow him to obtain testimony from the laboratory
    analyst as to the results of a drug test that would have impeached Willis’s testimony that he
    was smoking marijuana with defendant prior to the attack.
    {¶ 20} The grant or denial of a continuance is entrusted to the broad, sound discretion
    of the trial court.   State v. Landrum (1990), 
    53 Ohio St.3d 107
    , 
    559 N.E.2d 710
    .             In
    exercising that discretion, the trial court should consider the length of delay requested, prior
    continuances, inconvenience, the reasons for the delay, whether the defendant contributed to
    the delay, and other relevant factors.       
    Id.
       The court may deny a continuance that is
    requested as a trial tactic.   
    Id.
       See, also, State v. Powell (1990), 
    49 Ohio St.3d 255
    , 259,
    
    552 N.E.2d 191
    ; State v. Unger (1981), 
    67 Ohio St.2d 65
    , 
    423 N.E.2d 1078
    .
    {¶ 21} In this case, the record indicates that on the second morning of trial, counsel for
    Santiago advised the court that he had spoken to Santiago’s probation officer the previous
    evening and learned that Santiago had passed a drug test taken on September 22, 2009.
    According to counsel, these test results showed that Santiago had not used drugs in the 30 days
    before the test, therefore impeaching Willis’s testimony that Santiago had smoked marijuana
    immediately before the attack.       Counsel asked the court to allow admission of the negative
    drug test, but to exclude evidence that Santiago is on probation.        Counsel also asked for a
    continuance to identify the laboratory analyst who conducted the drug test.
    {¶ 22} The trial court subsequently noted that in Santiago’s January 14, 2010
    competency and sanity evaluations, he stated that he had not smoked marijuana for
    approximately two months prior to the incident.     The court additionally noted that the analyst
    would be required to testify about the test, and that the State would be permitted to conduct a
    voir dire of this witness prior to the court permitting any testimony.      At this point, defense
    counsel informed the court that the toxicologist and the acting toxicologist were both on
    vacation and asked for a continuance.    The trial court denied that request.
    {¶ 23} We find no abuse of discretion.     The length of the delay was uncertain.      The
    reason for the delay, i.e., to corroborate that Santiago had not smoked marijuana, could have
    been pursued at least six months prior to trial, when his drug history was referenced in his
    competency and sanity evaluations.      Because the matter was raised on the second day of
    testimony, it involved great inconvenience to the court.    Accordingly, the trial court did not
    abuse its discretion in denying the mid-trial request for a continuance.
    {¶ 24} This assignment of error is without merit.
    ASSIGNMENT OF ERROR TWO
    “The trial court erred by denying Appellant’s motion for a mistrial where a
    witness improperly testified before the jury that defendant had been in jail and
    the trial court did not give the jury a limiting instruction * * * that may have
    diminished the prejudicial effect of this improper testimony.”
    {¶ 25} Santiago next complains that the trial court should have ordered a mistrial after
    Willis twice stated in his direct testimony that Santiago let the group of men into the house
    after he recognized one of them as “somebody that he was locked up in jail with.”
    {¶ 26} The grant or denial of an order of mistrial lies within the sound discretion of the
    trial court. State v. Garner (1995), 
    74 Ohio St.3d 49
    , 
    656 N.E.2d 623
    .         An appellate court
    will not disturb the exercise of that discretion absent a showing that the accused has suffered
    material prejudice. State v. Sage (1987), 
    31 Ohio St.3d 173
    , 
    510 N.E.2d 343
    .            A mistrial
    should be declared only when the ends of justice so require and a fair trial is no longer
    possible. State v. Franklin (1991), 
    62 Ohio St.3d 118
    , 
    580 N.E.2d 1
    .        Where the request for
    a mistrial is based upon a brief, isolated incident that does not involve prosecutorial
    misconduct, the trial court is within its discretion in denying the motion for a mistrial.   
    Id.
    {¶ 27} Viewing this matter in its entirety, we find no abuse of discretion.            First,
    Willis’s remarks were not solicited by the prosecuting attorney and were brief and isolated.
    Moreover, with regard to the substance of the remarks, they do not establish that Santiago
    committed any offense.      Although the court would have been well advised to provide a
    curative instruction to the jury, we note that the court did instruct the jury that Santiago was
    presumed innocent of the charges unless proven guilty beyond a reasonable doubt.                   We
    conclude that the remarks did not deprive defendant of a fair trial and were harmless beyond a
    reasonable doubt.
    {¶ 28} This assignment of error is without merit.
    ASSIGNMENT OF ERROR THREE
    “The trial court erred by giving a flight instruction to the jury over
    Appellant’s objection.”
    {¶ 29} Here Santiago asserts that the court’s flight instruction was erroneous because it
    did not advise the jury that if they found that he left the scene for reasons other than a
    consciousness of guilt then it should not consider evidence of his departure for any purpose.
    He further complains that a flight instruction was not warranted in this matter because he did
    not flee, but rather left the scene after reporting the robbery to CMHA police.
    {¶ 30} As an initial matter, we review a trial court’s issuance of a jury instruction for
    an abuse of discretion. State v. Williams, Cuyahoga App. No. 90845, 
    2009-Ohio-2026
    .
    Further, jury instructions are reviewed in their entirety to determine if they contain prejudicial
    error.    State v. Fields (1984), 
    13 Ohio App.3d 433
    , 436, 
    469 N.E.2d 939
    .            Flight from
    justice may be indicative of a consciousness of guilt. State v. Taylor, 
    78 Ohio St.3d 15
    , 27,
    
    1997-Ohio-243
    , 
    676 N.E.2d 82
    .       However, “a mere departure from the scene of the crime is
    not to be confused with a deliberate flight from the area in which the suspect is normally to be
    found.”    State v. Norwood (Sept. 30, 1997), Lake App. Nos. 96-L-089 and         96-L-090.
    {¶ 31} With regard to the form of the instruction, we note that in this matter, the court
    instructed the jury as follows:
    “There may be evidence in this case to indicate that the defendant fled from
    the scene of the crime. Flight does not in and of itself raise the presumption
    of guilt but it may show consciousness of guilt or a guilty connection with a
    crime. If you find the defendant did flee from the scene of the crime, you
    may consider this circumstance in your consideration of the guilt or innocence
    of the defendant.”
    {¶ 32} As to the court’s failure to include language in the instruction advising the jury
    not to consider evidence of Santiago’s departure from the scene if they find that it was not
    motivated by consciousness of guilt, we note that in State v. Stokes, Mahoning App. No.
    08-MA-39, 
    2009-Ohio-4820
    , the court rejected this same contention.            In Stokes, which
    involved the same instruction given herein, the court held that the trial court did not abuse its
    discretion in failing to additionally charge the jury to consider other motives for departing the
    scene or to disregard evidence of the accused’s departure, and noted that the instruction that
    the court gave is an accurate statement of the law, taken verbatim from the Ohio Supreme
    Court’s decision in State v. Eaton (1969), 
    19 Ohio St.2d 145
    , 160, 
    249 N.E.2d 897
    , vacated on
    other grounds (1972), 
    408 U.S. 935
    , 
    92 S.Ct. 2857
    , 
    33 L.Ed.2d 750
    ; holding reaffirmed in
    State v. Williams, 
    79 Ohio St.3d 1
    , 11, 
    1997-Ohio-407
    , 
    679 N.E.2d 646
    .        See, also, State v.
    Wright, Cuyahoga App. No. 92344, 
    2009-Ohio-5229
     (trial counsel not ineffective for failing
    to request this additional language in flight instruction).   Cf. State v. Lozada, Cuyahoga
    App. No. 94902, 
    2011-Ohio-823
     (no error where the court’s oral charge to the jury failed to
    contain this additional language but the written charge did contain this language).
    {¶ 33} In this matter, the court’s instruction also tracks the language of Eaton and is an
    accurate statement of law.      Moreover, the given instruction is identical to an instruction
    approved by this court in State v. Hamilton, Cuyahoga App. No. 86520, 
    2006-Ohio-1949
    .
    The court’s instruction informed the jury that “[i]f you find the defendant did flee from the
    scene of the crime, you may consider this circumstance in your consideration of the guilt or
    innocence,” so it did apprise the jury to consider whether there had been more than a mere
    departure from the scene.    (Emphasis added.)    The form of the instruction was not an abuse
    of discretion.
    {¶ 34} As to whether the instruction was warranted herein, we note that in State v.
    Villa, Lorain App. No. 05CA008773, 
    2006-Ohio-4529
    , the court held that the trial court did
    not abuse its discretion in giving a flight instruction where the evidence established that
    defendant departed the scene, was sought for questioning about the crime, and could not be
    located.
    {¶ 35} In this matter, there was evidence that while Hazel remained at the scene,
    Santiago left immediately and the officers could not locate him.         We find no abuse of
    discretion viewing the record in its entirety.
    ASSIGNMENT OF ERROR FOUR
    “Appellant’s convictions are against the manifest weight of the evidence.”
    {¶ 36} In determining whether a conviction is against the manifest
    weight of the evidence, the appellate court sits as a “thirteenth juror” and
    disagrees with the factfinder’s resolution of the conflicting testimony. State
    v. Thompkins, 
    78 Ohio St.3d 380
    , 387, 
    1997-Ohio-52
    , 
    678 N.E.2d 54
    , citing
    Tibbs v. Florida (1982), 
    457 U.S. 31
    , 42, 
    102 S.Ct. 2211
    , 
    72 L.Ed.2d 652
    . The
    reviewing court must examine the entire record, weigh the evidence and all
    reasonable inferences, consider the credibility of the witnesses, and determine
    whether the jury “clearly lost its way and created such a manifest miscarriage
    of justice that the conviction must be reversed and a new trial ordered.” 
    Id.,
    quoting State v. Martin (1983), 
    20 Ohio App.3d 172
    , 175, 
    485 N.E.2d 717
    .
    {¶ 37} The appellate court may not merely substitute its view for that of
    the jury, and reversal on manifest weight grounds is reserved for “the
    exceptional case in which the evidence weighs heavily against the conviction.”
    
    Id.,
     quoting Martin.
    {¶ 38} In this matter, after examining the entire record, weighing the
    evidence and all reasonable inferences, we are unable to conclude that the
    jury clearly lost its way and created such a manifest miscarriage of justice in
    convicting defendant of the offenses of attempted murder and felonious
    assault. The State’s evidence demonstrated that upon returning from the
    store with Willis and learning that Hazel had been robbed of money by
    Willis’s friends, Santiago became enraged and began to threaten Willis. As
    Willis was walking him out, Santiago drew near as if to shake Willis’s hand, then
    stabbed him in the lower abdomen and continued to chase and threaten him. Santiago’s
    evidence indicated that Hazel called the police to report the robbery, and the defense suggested
    that other individuals had stabbed Willis after Santiago left.   It is certain, however, that the
    police and EMS responded to the scene due to a stabbing, however, and not due to a robbery,
    and that Willis had already been stabbed by the time the police arrived. The convictions
    are not against the manifest weight of the evidence.
    {¶ 39} The fourth assignment of error is without merit.
    ASSIGNMENT OF ERROR FIVE
    “The trial court’s imposition of consecutive sentences is
    contrary to law and an abuse of discretion.”
    {¶ 40} Within this assignment of error, Santiago asserts that Oregon v. Ice, (2009), 
    555 U.S. 160
    , 129 S.Ct.711, 
    172 L.Ed.2d 517
    , retroactively reinstates the consecutive-sentencing
    statutes requiring factfinding that were excised in State v. Foster, 
    109 Ohio St.3d 1
    ,
    
    2006-Ohio-856
    , 
    845 N.E.2d 470
    , so the trial court was required to make findings of fact in
    order to sentence defendant to a term of imprisonment which was to be served consecutively
    to the sentence imposed in another matter.     He further asserts that the sentence imposed is
    disproportionate to the offense and is inconsistent with the sentence imposed for similar crimes
    committed by similar offenders.
    {¶ 41} In State v. Hodge, 
    128 Ohio St.3d 1
    , 
    2010-Ohio-6320
    , 
    941 N.E.2d 768
    , the Ohio Supreme Court recently addressed this argument and held that
    Ice   “does    not    revive    Ohio’s     former     consecutive-sentencing         statutory
    provisions,      R.C. 2929.14(E)(4)        and      2929.41(A),       which      were      held
    unconstitutional in Foster. Trial court judges are not obligated to engage in
    judicial fact-finding prior to imposing consecutive sentences unless the
    General Assembly enacts new legislation requiring that findings be made.”
    
    Id.
     at paragraphs two and three of the syllabus. Therefore, post-Foster, “trial
    courts have full discretion to impose a prison sentence within the statutory
    range and are no longer required to make findings and give reasons for
    imposing maximum, consecutive or more than the minimum sentence.”
    State v. Kalish, 
    120 Ohio St.3d 23
    , 25, 
    2008-Ohio-4912
    , 
    896 N.E.2d 124
    .
    {¶ 42} As to Santiago’s additional claims regarding proportionality and consistency,
    we note that he did not challenge the proportionality of his sentence or the consistency of it as
    compared to other similar offenders in the court below, therefore, he has waived this issue.
    State v. Lycans, Cuyahoga App. No. 93480, 
    2010-Ohio-2780
    .
    {¶ 43} In this matter, the court complied with the applicable rules and statutes, so
    the sentence is not clearly and convincingly contrary to law, and the court did not abuse its
    discretion.   At the sentencing hearing, the trial court noted that Santiago had three
    prior offenses, that rehabilitation efforts and measures to treat his mental
    illness were unsuccessful, and that his behavior had repeatedly put others at
    risk.
    This assignment of error is without merit.
    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
    convictions having been affirmed, any bail pending appeal is terminated.
    A certified copy of this entry shall constitute the mandate pursuant to
    Rule 27 of the Rules of Appellate Procedure.
    MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
    FRANK D. CELEBREZZE, JR., J., and
    SEAN C. GALLAGHER, J., CONCUR